National security controls on information and communication in Australia

National Security Controls on Information and Communication in Aus~a~ia

HON. RICHARD ALSTON*

and communication have been realized in Australia through various intelligence agencies and acts of the Parliament which, to varying degrees, restrict public access to documents regarded as essential to the “national interest.“This overview describes these entities and laws as well as the rote of the Freedom of Information Act. It concludes that, in stark contrast to the United States, there has been a “freeing-up” of national security controls on information and communication in Australia in recent years, National security controls on information

The concept of “national security” is difficult to define as its scope and content depend very much on prevailing circumstances. Indeed, it has not infrequently been used as a euphemism for State terrorism. For the purposes of this article, the following definition, found in the Australian Security Intelligence Organization Act of 1979, will be used: “security” means (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from; and (b) the carrying out of Australia’s responsibilities to any foreign country in relation to espionage, sabotage, subversion, active measures of foreign intervention or terrorism, whether directed from, or committed within Australia or not.’

The national security controls placed on info~ation regarding communi~tions in Australia have been justified by successive governments as necessary for both the achievement and maintenance of this security. They range from the activities of domestic and foreign intelligence agencies to acts of the Federal Parliament which, to varying *Direct all correspondence to: Hon. Richard Alston, Parliament of Australia, Q,@ces, 400 Flinders Sireer, Melbourne, Victoria 3000, Australia. Government Information Quarterly, Volume 4, Number 1, pages 29-41. Copyright @ 1987 by JAI Press, Inc. All rights of reproduction in any form reserved. ISSN: 0740-624X.

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degrees, restrict interest.”

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to the “national

GATHERERS

There are two active intelligence-gathering organizations in Australia which operate under the control of the Commonwealth Government-the Australian Security Inteiligence Organization (ASfO) and the Australian Secret Intelligence Service (ASK). In addition, there are other intelligence-evaluating organizations such as the Office of National Assessments (ONA), the Joint Intelligence Organization (JIO), and the Defense Signals Directorate (DSD), which operate from within departments and are accountable through their departmental heads to the responsible ministers and thus to the National Parliament. For the most part, their information~ollecting activities remain substantially hidden, with the government relying on what it is told for most of its knowledge about them. Details on some of the following organizations are, therefore, very scant.

Australian Security Intelligence Organization (ASIO) ASIO, Australia’s domestic intelligence organi~tion, was established by a directive from Prime Minister J.B. Chifley on March 16, 1949. The initial legislative authority for the organization came from the AS10 Act of 1956 which, apart from a 1976 amendment to provide for the appointment of a judge as Director-General, remained unaltered for 23 years. In August, 1974, a Royal Commission on Intelligence Security in Australia was appointed, headed by Mr. Justice Hope. This led to the enactment of the AS10 Act of 1979. As its legislative reforms were both fundamental and wide-ranging, there is little to be gained by detailed study of ASIO’s role prior to that time. Under the 1979 Act, ASIO’s functions may be summarized as being the “collection, evaluation and communication of intelligence relevant to the protection of Australia and its people from a number of specified activities, including espionage and other acts of foreign interference, subversion and terrorism.“’ ASIO’s role is restricted to info~ing and advising the government-including police authorities-and, significantly, it has no power to act independently on the intelligence that it has gathered. In addition to intelligence collection, AS10 also engages in a whole range of other activities under the rubric of “protective security.” Such activities include advice to government agencies and furnishing them security assessments on people requiring clearance for access to security information areas, or on foreigners seeking to enter or remain in Australia. A substantial amount of ASlO’s time, energy, and resources is devoted to protective security activities. For example, in 1984-1985, AS10 carried out 300 threat assessments relevant to the protection of VIPs; 30,143 security checks in immigration cases covering applicants for permanent entry of visitors’ visas and for change of status; and 20,359 security assessments in relation to departmental and ministerial staff.3 People who are affected in their jobs by security assessments obtained for public service employment are entitled to appeal to the Security Appeals Tribunal. However, in practice, an employee may be unaware of being the subject of a security assessment and, therefore, be effectively denied the opportunity to appeal.

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There is general agreement that it is far better for “protective security” duties to be discharged by a single, visible, and accountable specialist body than inde~ndently by “security officers” within each agency. The same can be said about ASIO’s intelligence functions. It is preferable, in a democratic society, for these functions to be undertaken by a statutory agency with clearly delineated jurisdiction and powers and subject to rigorous accountability to government and Parliament, rather than by secret bodies buried away in the recesses of the bureaucracy.4 The task is, therefore, not to abolish ASIO, but to make it properly accountable and to ensure that its actions and operations are, as far as possible, open to scrutiny and criticism. AS10 is under the control of a Director-General appointed by the Governor-General on the recommendation of the Prime Minister, after consultation with the Leader of the Opposition. The Director-General holds office, subject to the Act, on such terms and conditions as the Governor-General determines. AS10 forms part of the AttorneyGeneral’s Department and, under section 94 of the AS10 Act, is required to furnish to the Attorney-General an annual report on the activities of the Organization each year. A copy of the report is also given to the Leader of the Opposition who, until recently, was required to treat its contents as secret. However, since 1984, ASIO’s annual report has been tabled in the Federai Parliament, thereby providing the Australian public with a window on the operations of ASIO. However, save for the foregoing and the scrutiny of funding by the Intelligence and Security Committee of Cabinet, there are no statutory powers enabling the legislature to supervise the activities of ASIO. Concern about ASIO’s apparent lack of accountability prompted the establishment of a further Royal Commission in 1983 to inquire into the activities of Australia’s security and intelligence agencies. Impetus for this Royal Commission, once again conducted by Mr. Justice Hope, was given by what has become known as the Combe-Ivanov affair’-a major incident leading to the expulsion from Australia of a KGB officer, Valeriy Ivanov, following his association with David Combe, a Canberra lobbyist and former Australian Labor Party Federal Secretary. It was alleged by AS10 that the association which Combe had formed with Ivanov, a First Secretary at the Soviet Embassy in Canberra, was a threat to national security. Following his investigations, Mr. Justice Hope found that Combe was not a spy, was not guilty of any crime, and was not responsible for any breach of national security.6 He also concluded, however, that there was no doubt that Ivanov was a KGB officer and deserved expulsion. Although Mr. Justice Hope cleared AS10 for its role in the affair, important questions did arise about the inadequacy of the regulation of security organizations and, in particular, the AS10 chain of responsibility and command. The Combe-Ivanov affair, together with a subsequent report by Mr. Justice Hope on ASIO, tabled in the Federal Parliament in May, 1985,’ led to the introduction of legislation to clarify and define the role and powers of AS10 and to strengthen the arrangements for its control and accountability. The AS10 Amendment Bill of 1986, currently before the Parliament, is designed to: l

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clarify ASlO’s jurisdiction and define more closely and precisely matters of legitimate security interest; strengthen ministerial control over ASIO; support and strengthen the present position whereby AS10 security assessments are advisory only, and should form only part of the information on which a security related decision is based; and

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Joint Committee on ASIO.’

To the extent that legislative changes result in more functions and provide for more effective control and facilitate more effective operations by AS10 and, in assurances to the community. Above all, the proposals remains the servant of the people, not the master.

explicit clarification of ASlO’s oversight, they will, hopefully, doing so, provide satisfactory will help to ensure that AS10

Australian Secret Intelligence Service (ASK)

ASK, the Australian counterpart to the American CIA, operates under the authority of a directive issued by the Federal Cabinet to the Director-General of ASIS. The directive, designed to give the Minister for Foreign Affairs close control of its activities, specifies ASIS’ functions. Foremost among these is the collection of foreign intelligence. In performing its activities, which are still largely shrouded in secrecy, ASIS is required to comply with Australian law-it has no special exemption. ASIS does not work to destabilize foreign governments or carry on “covert action”abroad (i.e., action which may involve force or violence for purposes such as the rescue of hostages or sabotage).’ However, until the “Sheraton Hotel incident” on the night of November 30, 1983, ASIS did have a training scheme in operation to give it some limited contingent capability for crisis response. The illegalities involved in the Sheraton Hotel incident have had a considerable impact upon the operations of ASIS. Briefly, the incident arose from an exercise in a project training course involving a group of trainees who had been recruited to give the Service a covert action capability. The exercise involved the mock rescue of a “hostage” being held in a hotel room by two “foreign intelligence officers of a major power.” ASIS trainees had been tasked to carry out all of the roles. It was intended that the exercise be conducted without publicity and without involving persons other than those directly taking part. Nevertheless, members of the public did become involved and it was publicly revealed that the trainees had been carrying weapons, had threatened members of the public with them, and had forced entry to a room of the hotel, causing not inconsiderable property damage.” In his report, Mr. Justice Hope concluded that the exercise was “poorly planned, poorly supervised and poorly run”” and made a number of recommendations to preclude any recurrence of a similar incident.‘* In response, the Government revised ASIS’ directive to exclude preparation for training for covert action in the form of special operations or special political action. Details about the specific activities of ASIS remain scarce. Certainly its activities are in no way under the direct statutory control of Parliament-a fact of concern to those who believe in the supremacy of parliamentary government. The only direct Parliamentary control over ASIS is through funding, which is controlled by the Intelligence and Security Committee of Cabinet. Otherwise, ASIS, like the CIA and the British Secret Intelligence Service, goes about its activities without any direct Parliamentary or public oversight. Off ice of National Assessments(ONA)

ONA, established in 1977 as a result of recommendations arising out of Mr. Justice Hope’s first Royal Commission, is an independent body whose principal activity is to

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assess intelligence. In addition, it is responsible for reviewing and reporting upon the coordination of the activities of the various agencies dealing with foreign intelligence and reports directly to the Prime Minister. Although officialfy it does not propose policy changes, it does offer judgments that are highly relevant to policy formation. It is also required to: l

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assemble and correlate information refating to internationai matters of political, strategic, or economic significance to Australia; prepare reports in relation to matters of current significance; and make assessments in relation to matters of national importance.”

Unlike ASIS, ONA has as its role the analytical task of estimating or assessing situations as distinct from gathering information about them. The ONA Act establishes two Assessment Boards, a National Assessments Board and an Economic Assessments Board, whose members comprise the Director-General of ONA, and specified officers of the departments primarily concerned. These assessments have generally been of high quality. “Current Significance” reports, which have been increasingly used in recent years, are issued without reference to either of the Boards, although in practice there is informal consultation. In his 1984 report on 0NA,r4 Mr. Justice Hope gave consideration to the two separate Assessment Boards and concluded that it would be better to merge them into a National Intelligence Committee (NIC). He envisaged that the Committee would not only deal with national assessments in the same manner as the existing Boards, but would also have programming and similar functions designed to give ONA across-the-board assistance in responding to the needs of government. In response to this recommendation, the government subsequently established a NIC, chaired by ONA, and including senior representatives of policy departments and JIO. The Committee advises ONA on the development of its work program, monitors ONA’s activities, and advises it on intelligence needs and priorities. When it was established in 1977, it was thought that ONA would break the stranglehold of the Defense and Foreign Affairs Departments on intelligence assessment. In particular, Mr. Justice Hope wanted ONA to take over many of the functions of Defense’s JIO. This has not eventuated. However, because they share a responsibility for the making of strategic assessments, ONA does work in close collaboration with JIO. ONA’s role is, of course, much broader than JIO’s, whose activities are directed essentially to meeting the needs of the Defense Department and the Defense Force. Even with the establishment of NIC, there remains scope for ONA to play a fuller role in its responsibility for “national intelligence.” Unless the government further upgrades ONA into an effective and influential coordinating body as first intended by Mr. Justice Hope, it will continue to operate in a fragmented and poorly coordinated manner. Joint Intelligence Organization (JIO)

JIO was established in 1970 to replace the Joint Intelligence Bureau, which had operated since 1946. JIG’s principal function is to provide intelligence assessments to the Defense Department and the Defense Force, but it also has an important role in cooperating with ONA in defense-related matters. It handles a vast amount of intelligence and

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issues assessments and reports which are generally well regarded by those who receive them. While JIO enjoys a degree of autonomy in its operations, its directors are responsible, through the Chief of the Defense Force, to the Minister for Defense. As mentioned previously, JlO’s functions overlap to some degree with those of ONA in respect to strategic assessments, although, of course, its activities are directed to defense rather than national needs. JIO has an important intelligence role to play within both the defense organization and the national intelligence community. It has developed a detailed knowledge of military developments and related information in areas of key strategic interest to Australia. Its assessment work contributes to detailed policy decisions in the national defense effort. Through reporting on the military capabilities of other countries, JIO makes a valuable contribution to decisions about the character and size of the Australian Defense Force, including the selection of equipment and weapon systems. Mr. Justice Hope, in his 1984 report, found that there were some shortcomings in JlO’s ability to identify and meet Defense Force needs.” He proposed the establishment of a Defense Intelligence Committee (DIG) to give structured advice on requirements. He also recommended that JIO should be more actively involved in the planning, conduct, and review of major Defense Force exercises so as to better employ its expertise. On November 27, 1985, the government announced measures to improve consultation between the Joint Intelligence Organization and its major customers-certainly a step in the right direction. Defence SignalsDirectorate (DSD)

DSD is a subset of the Defense Department, responsible to it rather than directly to the Minister. It is concerned with the collection of intelligence and information from electronic emissions and the security of government communication and electronic emissions. DSD’s activities have expanded substantially since 1974, leading to occasional allegations of impropriety. However, despite public allegations of breaches of its formal obligations, Mr. Justice Hope found no evidence of any improper behavior on the part of DSD. I6 Like Australia’s other intelligence organizations, the activities of DSD remain shrouded in secrecy. Accordingly, there is very little opportunity for Parliament and the general public to scrutinize DSD’s performance and to hold it accountable for its actions.

PROPOSAL FOR AN INDEPENDENT WATCHDOG Under existing arrangements, responsibility for internal and external intelligence gathering and processing is dispersed among a number of Federal departments and agencies, and none has responsibility for coordinating policy in this area. There are four Ministers responsible for the various intelligence agencies. The Director-General of ONA is responsible to the Prime Minister. ASlO’s Director-General is responsible to the AttorneyGeneral, while the DSD and JIO are both elements of the Department of Defense and, as such, are responsible to the Minister for Defense. ASIS, on the other hand, operates under ministerial directive and its Director-General is responsible to the Minister for

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Foreign Affairs. In an effort to coordinate and streamline the activities of these agencies, the government has recently announced that a new, high-level committee to coordinate protective security policy and physical and administrative security measures will be established within the Department of the Special Minister of State.” The establishment of this Committee will not only allow considerably increased scrutiny of the agencies, but should also make them more effective in performing their duties. In a further move to increase the accountability of Australia’s intelligence and security agencies, the government has proposed to establish an independent watchdog over all the agencies. The watchdog will take the form of an office to be titled The Inspector-General of Intelligence and Security (IGIS), which will inquire into the various aspects of Australian security agencies. The government’s aims in establishing this Office of InspectorGeneral include:

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to assist Ministers with the oversight and review of Australian intelligence and intelligence agencies, including their compliance with Australian law; to assist Ministers in ensuring that the activities of the agencies are consistent with human rights; and to allow for review of certain directions given to AS10 by the Attorney-General.‘*

While the emphasis is on the Inspector-General’s assistance to Ministers, elements of the Inspector-General’s work will be available for parliamentary and public scrutiny. For example, provision is made for an annual report to be furnished to the Prime Minister, with a copy to the Leader of the Opposition. Once edited on the grounds of security, defense, international relations, and privacy, the report will also be laid before each House of Parliament. The Inspector-General will be based within the Department of Prime Minister and Cabinet, and his appointment will be on the recommendation of the Prime Minister, after consultation with the Leader of the Opposition. The appointee will, therefore, need to secure bipartisan support. The IGIS Bill, now before the Federal Parliament, confers a number of important functions on the Inspector-General with respect to all of the agencies. Specifically, the Inspector-General will inquire into the propriety of the agencies’ activities; their compliance with Australian law, ministerial directions or guidelines, human rights, and procedures relating to employee grievances. lg In addition, the Bill distinguishes between the agencies, both in terms of the Inspector-General’s functions and the mechanisms by which inquiries can be instigated. The distinctions reflect the different purposes of AS10 as the domestic security organization, ASIS and DSD as collectors of external intelligence, and JIO and ONA as assessors of intelligence. For example, in respect to initiating inquiries, the Inspector-General may initiate \his own inquiries into the legality or propriety of activities of ASIO, ASIS, or DSD, but only the responsible Minister may initiate such an inquiry about the activities of JIO or ONA. The Prime Minister, because of his overall responsibility for intelligence and security matters, will also be able to request that the Inspector-General inquire into any one or more of the agencies. The creation of an IGIS should be beneficial in increasing the accountability of Australia’s intelligence and security agencies. The IGIS Bill etablishes an office which will, to paraphrase Mr. Justic Hope, provide an independent oversight of the agencies activities, give the public a greater assurance that those activities are proper ones, and

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LEGISLATIVEMEASURES WHICH RESTRICT PUBLIC ACCESS TO INFORMATION There are a number of acts of the Federal Parliament which contain provisions allowing for the classification of government documents on the basis of national security considerations. These secrecy provisions impede, in varying degrees, the flow of information to the Australian people. Freedomof Information(F.O.I.) Act The Freedom of Information (F.O.I.) preventing the release of documents on The Act’s section 33 (I) IV, which enables or international relations to be classed as (I)

Act of 1982 contains a powerful provision for the basis of “national security” considerations. documents affecting national security, defense, exempt, provides:

A document is an exempt document if disclosure

of the document under this Act would be contrary to the public interest for the reason that the disclosurewould, or could reasonably be expected to cause damage to(a) (i) the security of the Commonwealth (ii) the defence of the Commonwealth (iii) the international relations of the commonwealth; or or matter communicated in confidence by or on (b) would divulge any information behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.*’

The purpose of section 33 is, therefore, to protect the public interest in maintaining the security, defense, and international relations of the Commonwealth and affording proper protection to confidential communications at an inter-governmental level. Whether a document “would, or could reasonably be expected to cause damage” to “the security” or to “the defence” or to “the international relations of the Commonwealth” is determined in the first instance by the Minister or officer making the access decision, and then, secondly, by the Administrative Appeals Tribunal (AAT), as the appropriate review body. The test “could reasonably be expected to cause damage” is the same test as applies in determining whether or not a document should be classified as confidential in accordance with the Protective Security Manual. The coincidence of language is deliberate, to bring the test for exemption under section 33(I)(a) into line with the confidential classification. The Protective Security Manual outlines a system of classification: top secret, secret, confidential, and restricted; each classification is made according to “the estimated prejudice to national security which might result from unauthorised disclosure.“** An examination of the definition of “confidential” used in the Manual states the test for classification as “if its unauthorised disclosure could reasonably be expected to cause damage to the national security.“23 The tests for classification into top secret and secret

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require corresponding higher degrees of damage to the national security. Thus, it could be argued that documents classified as confidential, secret, or top secret would be regarded as exempt under the section. However, the F.O.I. Act does not endeavor to define the relationship between the Manual and Section 33(I)(a). It is clear that the Manual classification scheme does not determine one way or the other whether or not a document is exempt. First, the F.O.I. Act does not prohibit disclosure of documents classified by the Manual. Second, the F.O.I. Act permits only part of a document to be exempt, whereas the classification under the Manual applies to the whole document. Third, the decision that a document is exempt is often made much later than the classification decision. In the intervening period, the circumstances surrounding the classification may have altered. Finally, the person classifying the document differs from the person who decides on access to the document. As a result, the person deciding on access may take a different view on the question of the damage that would be caused by disclosure and may, thus, disagree with the classification accorded to the document. Therefore, the presence of a national security classification stamp of “confidential” or higher on a document does not automatically render it exempt under section 33(I)(a). Conversely, the fact that a document is not classified does not, of itself, mean that the document may not be exempt under section 33(I)(a). It may be that, as a result of changing circumstances, a document ought to have been reclassified but has not been. Where an exemption is claimed under section 33, a conclusive certificate may be issued. During 1984-1985, three conclusive certificates were issued, one each by the Treasurer, the Attorney-General, and the Secretary of the Department of the Special Minister of State.24 Of these, the most publicized case was that of Anderson v. Depurtment of Special Minister of State.2s The applicant, a member of the Ananda Marga sect, sought access to documents relating to himself. After inspecting the documents, the Administrative Appeals Tribunal upheld most of the grounds for exemption. Among the grounds for exemption were section 33(I)(a). While the information contained in the document sought was, itself, stale, the document would have disclosed procedures and methods relating to the control of terrorism that the interests of security demanded should not be revealed. Also upheld were claims for exemption under section 33(I)(b). The Tribunal accepted evidence from a senior officer of the Department of Foreign Affairs that the information was regarded as very sensitive in its country of origin and supply of such information in the future would be limited if there was a likelihood of disclosure. The Tribunal also endorsed the witness’view that the assessment of sensitivity is largely for the supplying country to determine. Although, during the current year, agencies’ reliance on section 33 exemptions to refuse or make deletions to documents doubled to 3.4 percent of the total use of exemption,26 It’ IS ’ used relatively infrequently compared to other categories. Not all of the government’s attempts to use section 33 exemptions have met with success. For example, section 33(I)(a)(iii) was invoked unsuccessfully in Chundra v. Ministerfor Immigration and Ethnic Affairs.27 The applicant, a Fijian, was the subject of a deportation order as a prohibited immigrant. He sought review of the decision refusing him access to the Department’s records. His stated reason for seeking access to the documents was to assist his case in seeking to persuade the Department to revoke the deportation order. The Tribunal ruled that the issue at stake was whether or not dis-

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closure of the particular document could be expected to cause damage to the international relations of the Commonwealth. It concluded that such a result could not be expected in this case, given the age of the information contained in the document and the nature of the communication-a routine police report. In addition to exempting certain documents, some 24 government agencies are also granted total immunity from F.O.I.A. requests and 19 agencies are granted partial immunity.2* Included among the totally immune entities are Australia’s intelligence agencies-ASIO, ASIS, ONA, DSD, and JIO. The chief arguments supporting immunity for intelligence agencies appear to be diversion of resources from their primary purpose and the perception that potential informants would not supply data because F.O.I.A. requests might reveal the identity of sources. There is also the “jig-saw” problem whereby seemingly innocuous pieces of information can be put together at a later date to reveal a damaging trend and informative big picture. However, experience has shown that far fewer F.O.I.A. requests have been lodged than expected. It is therefore likely that agency resources will not be overwhelmed by thousands of requests. Also, fears about informants not supplying data if intelligence agencies become subject to the Act may also be misplaced. Experience in respect to section 33 exemption has shown that the AAT has given much weight to the arguments of the law enforcement agencies against disclosure. Judicial caution in these sensitive areas could be expected to continue if intelligence agencies were opened to the F.O.I. Act. If anything, caution would probably increase in cases involving such sensitive agencies. In the United States, the CIA and the FBI have never in 20 years been forced by a court to disclose documents under F.O.I.A. which directly revealed the source of confidential information. The CIA has never lost an F.O.I.A. appeal. If the Australian intelligence community accepts the desirability of the scrutiny which the F.O.I. Act brings, acknowledges the strength of safeguards, and does not sensationalize imagined disasters for the country’s security and all who deal with the agencies, there is some evidence that it will help to improve intelligence agencies and their image.29 In the course of its present review of the first three years’ operations of the F.O.I. Act, the Senate Standing Committee on Constitutional and Legal Affairs is considering whether Australia’s intelligence agencies should be required to respond to requests. The Committee is expected to table its report towards the end of 1986. Other legislative

Provisions

There are other legislative measures which place restrictions upon the flow of information into and within Australia. The Telecommunications (Interception) Act of 1979,30 for instance, gives members of the Australian Federal Police the power to intercept telecommunications and inspect telegrams for the purposes of narcotics inquiries. Use of this Act has increased enormously in recent years in the government’s tight against rampant drug trafficking in Australia. In addition, there are provisions in other Federal acts which restrict access to government information and documents thought to be of vital importance to “national security.” For example, a section of the Crimes Act of 191431 relates to official secrets and allows criminal proceedings to be brought against those who misappropriate, make available, or publish proscribed documents or information. Specific secrecy provisions

and disclosure penalties are also found in sets such as the Australian Trade Commission

Act of I98532and the &fence Act of f903.33 Judicial Protection Perhaps not ~~exp~t~ly, there has been visually no concluded litigation on security issues in recent years-at least not in open court. However, there is a 1980 decision by a single Justice of the High Court where an interlocutory injunction was granted restraining the publi~tion of the contents or extracts from a book entitled ~c~nle~~s on Atcstraiiun Defence ad ~~~e~~ F&y 1968-7J,34 The parties there aeknowIedged the fundamental principle that a court will “restrain the publi~tion of ~on~dential information improperly or surreptitiously obtained or of info~ation imparted in confidence which ought not to be divulged.“3’ However, the principle was fashioned to protect the personal, private, and proprietary interests of the citizen. If it is to be extended to protect the very different interests of the Executive Government, it must be shown not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be a detriment to the public interest. As Mr. Justice Mason said: “It is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government where the only vice of that information is that it enables the public to discuss, review and criticise government actions.. . . If, however, it appears that disclosure will be inimical to the public interest because nationaf security> relations with foreign countries or the ordinary business of government wiII he prejudiced, disclosure will be restrained.” It folfows that the courts stand ready to intervene to safeguard the national interest. However, mere assertion will not be sufficient and will need to be balanced against the democratic needs of an open society. Ultimately, however, it is likely that the courts will continue to ensure that national security concerns remain paramount but not exclusive.

In the Foreword to the Pmteetive Security ~a~~b~~~ (now Protective Security h&m ual) published in 1978, the then Prime Minister, the Right Hon. Malcolm Fraser, said:

“It is the firm view of the Government that Australian citizens should have access to information held by or on behalf of the Government, unless there are strong reasons for nondisclosure. One of the most important reasons for nondis~Iosure is national security. _. . In such cases, it is the ~sponsibility of every citizen-and especially of persons in government employment and members of the Defence Force-to ensure that information is safeguarded and not disclosed without authority.” Such a view would still be shared by most Australians today. If anything, there has been a “freeing-up” of national security controls on information and communications in Australia in recent years. This is in stark contrast to the United States, which has witnessed a substantial clamp-down by the government on the flow of information to the American people. Australia must learn from the US. experience and make a concerted effort to ensure that the national security controls placed upon information and commendations are kept to a minimum and that agencies responsible for enforcing these controls remain as accountable as possible to the Federal Parliament.

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The situation when it said:

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by the Canberra Times in its editorial

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of May 29, 1984,

The watchdogs have to be constantly watched. Nonetheless watchdogs are necessary. It is idle to say that security organisations can infringe liberty and so should be abolished, because the abolition of the security organisations would pose a much bigger threat to liberty than the organisations themselves-liberty from terrorism, liberty from political and commercial espionage, liberty from interference and destabilisation by foreign governments. Liberty and security go hand in hand. Without liberty there can be no security; without security there can be no liberty.

NOTES AND REFERENCES I. 2. 3. 4. 5.

Australian Security Intelligence Organization Act of 1979, section 4. Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Ausrruliun Securirr Inrelligence Orgunizurion (Canberra: Australian Government Publishing Service, 1985). p. 2. Australian Security Intelligence Organization, Annuul Report 1984-85. Parliamentary Paper 429/ 1985. Unpublished speech by Senator, the Honorable, Gareth Evans before the Victorian Council for Civil Liberties, May 17, 1984.

Details of the Combe-Ivanov affair are contained in David Marr, 77re fvunov Trio/ (Sydney: Thomas Nelson Australia, 1984). 6. Royal Commission on Australia’s Security and Intelligence Agencies, Reporr on rhe Terms ofReference (Canberra: Australian Government Publishing Service, 1983). 7. See note 2. 8. ASIO Amendment Bill 1986. 9. Royal Commission on Australia’s Security and Intelligence Agencies. General Reporr (Canberra: Australian Government Publishing Service, 1984). p. 9. IO. Royal Commission on Australia’s Security and intelligence Agencies, Report on the Sheruron Hard lncidenr (Canberra: Australian Government Publishing Service, 1984). p. 2. II. Ibid., p. 68. 12. Ibid., p. 69. 13. Oflice of National Assessments Act 1977, section 5. 14. Royal Commission on Australia’s Security and Intelligence Agencies. Report on rhe OJfice of Nurionuf Assessments and rhe Joinf lnielligence Orgunisurion (Canberra: Australian Government Publishing Service, 1985). p. 61; tabled in Parliament, May, 1985. IS. Ibid., p. 65. 16. See note 9, p. I I 17. House of Representatives Hunsurd (May 22. 1986): 3706. of Intelligence and Security Bill 1986, clause 4. 18. Inspector-General 19. House of Represenrurives Hunsurd (May 22. 1986): 3707. 20. Ibid., p. 3708. 21. Freedom of Information Act 1982, section 33. 22. Senate Standing Committee on Constitutional and Legal Affairs. Freedom of Informorion (Canberra: Australian Government Publishing Service, 1979). p. 442; Parliamentary Paper 27211979. 23. Ibid. 24. Attorney General, Freedom of Information Act 1984-M Annual Report (Canberra: Australian Government Publishing Service, 1985). p. 67. 25. The Austruliun Administrative Luw Service (April 1985): 2194. 26. See note 24, p. 58. 27. See note 25. 28. Freedom of Information Act 1982, section 7. 29. Submission by The Age to the review of the F.O.I. Act by the Senate Standing Committee on Constitutional and Legal Affairs, 1986. 30. Telecommunications (Interception) Act 1979.

National Security Controls on information and Communication in Australia

31. 32. 33. 34. 35.

Crimes Act 1914,section 79. Australian Trade Commission Act, section 94. Australian Defence Act 1903,section 73A. Commonwealth of Ausrralia v. John Fairfax and Sons Ltd. (1980) 32 ALR 485. Lord Ashburron Y. Pape (1913) 2 Ch. 469.

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