Another week, another set of leaks of secret Commonwealth documents, this time, apparently, from carelessness at high levels in the Department of the Prime Minister and Cabinet, which disposed of, by auction, a full filing cabinet for which the keys had been displaced. The cabinet, when opened, contained high-level records of four successive governments, starting with the Howard government, including records of national security and intelligence committee minutes.
How embarrassing for PM&C.
Mercifully, the ABC, the recipient of the leaks once the last owner of the cabinet took a drill to the locks, used only a fraction of the material before cooperating with ASIO to secure the material from further prying eyes. Enough was disclosed to show that the ABC was not intimidated – by golly – by the national security state, without actually having published much that raised any questions about damage to national security.
The disclosures were, instead, damaging to the reputations of some of the politicians named in the correspondence, although it was far from clear that the document involving pink batts revealed anything not previously known. Indeed, it had been already disclosed to the Hanger royal commission into the pink batts affair, in spite of the breach of the tradition that a new government doesn't get to see the cabinet documents of the preceding one. That precedent, as I have remarked before, may come back to haunt the Abbott and Turnbull governments, perhaps the more sadly for them given that this and other supposed smoking guns missed the ceiling at the royal commission.
There will be those who will say that Australia's national security interests were damaged, even if, in the event, only a few political reputations suffered. This would be because the spectre of careless management of sensitive government records – including, probably, secrets conveyed by Australia's allies – weakens their confidence in our capacity to keep secrets. The Americans have had their own problems with leaks in recent times, particularly since the accession of Donald Trump. But they are not given to a great sense of humour about the fact that accidents happen to others as well.
As it happens, the federal government is just now trying to steer through the Parliament a significant expansion of the scope of its national security legislation, partly so as to capitalise on the appalling example of former Labor senator Sam Dastyari in appearing to act as paid stooge for Chinese interests.
The thinking about the idea that any leak of any classified document, regardless of its subject matter, was highly injurious to our security, defence or international relations was put nicely by the Attorney-General's Department's submission to the intelligence and security committee.
It acknowledged that the Law Reform Commission had wanted leaking of such a document to be regarded as criminal only if proof of harm could be established. But the department said "disclosure of security classified information is, by its nature, harmful. This category has therefore been included in the definition of inherently harmful information."
After all, "information should only be security classified if adverse consequences could result from unauthorised compromise or misuse of the information". And the Commonwealth, of course, has "well established" (if perhaps not "robust" or "transparent") processes for regular checks on whether documents have been properly classified, or should stay so classified.
"Accordingly", AG's thinks it must be assumed that any such document "will or would reasonably be expected to cause harm to the Commonwealth or an individual and warrants criminal liability".
Some utter cynics may think there have been several occasions in recent years in which a good deal of top-secret material, even some Australian material, was made public by people such as Julian Assange and Bradley Manning, with even more allegedly inherently confidential material (about tax-dodging through international tax havens) emerging through the efforts of the International Consortium of Investigative Journalists. In most cases, the security classification seemed to owe more to the capacity for political embarrassment than actual damage to the state. In every case I can think of, the public, and the nation, benefited rather than suffered, from disclosure.
Disclosure of the Panama papers, as similar materials, was of great interests to taxation departments all around the world. Disclosure of US State Department cables, and other documents, by WikiLeaks and other groups caused great consternation, particularly in the United States, where senior figures called for Assange's assassination without trial as a traitor to a nation of which he has never been a citizen. It was freely suggested, by Labor and Liberal ministers, that Assange was guilty of treachery, or some sort of offence, in Australia, the country of which he was (at least until he fell into the bosom of Ecuador), but no one seemed to be able to say what. Even the senior levels of the Australian Federal Police, asked by an attorney-general who (one might have expected) knew the law better than the cops, couldn't come up with a law he might have broken.
Security classifications seem to owe more to the capacity for political embarrassment than actual damage to the state.
Some will suggest sagely that some American or other intelligence agents lost their lives as a result of WikiLeaks' disclosures. But the evidence is far from convincing. We do know that no Australian intelligence agents died, since the approximate number of Australian intelligence or security officers who have died in non-military activities since, say, World War II is approximately zero. What is clear, however, is that the disclosures caused enormous embarrassment, and not only to the US. Here, for example, it was clear that several politicians, and Labor operatives, gabbled indiscreetly about their colleagues to US diplomats, with an indiscretion (not excused by drunkenness) at least equal to that of David Combe 25 years ago. Still, Combe was talking to Soviet diplomats, rather than our American friends, if about the same topic: what was in the newspapers about Australian politics.
The real damage that the disclosures caused – as so often with good leaks – was a disparity between what politicians and officials were saying publicly and what they were saying, or doing, privately. The officials, in short, were shown to be hypocrites, liars or both at once. More often than not, it was this duplicity that was being concealed, not anything involving details of weapons systems, operational activities or matters capable of affecting people's safety. Those shown to be among the biggest hypocrites or liars – US secretary of state Hillary Clinton, for example – might may have suffered, whether in reputation, or in capacity to deal with leaders of other nations, but only because it became even clearer that she was not a person to be trusted. Though Trump, now that he is President, is furious about leaks against him, some may remember that he said during the last US election that Assange was a hero and that he loved WikiLeaks. But both the informed and the uninformed public, as well as debate about public policy, even in the US, have benefited by seeing the cards on the table.
One can pretty much expect that any politician in trouble will hug the national flag and impugn the patriotism of any reptile of the press who discloses information contrary to the interests of the government of the day, especially in the defence or foreign affairs fields. Tony Abbott famously asked about the ABC "Whose side are they on?" seeming to assume that ABC journalists, as public servants, should propagandise for the nation, or at least shut up about its embarrassments. The attitude of politicians is reflected in the Defence Department, which has an enormous public relations apparatus but is strangely reluctant to disclose any information it has not prepackaged and sanitised. Some of Australia's generals regard journalists as more dangerous to the national security than Islamic State or the Taliban, a reason why they are so reluctant to expose their actions and decision-making to the sort of critical scrutiny that is routine overseas, even in the US. It is highly doubtful that this compulsive secrecy has benefited Australian actions, Australian troops or the Australian mission, such as it has been, since 21st century interventions in Afghanistan, the Middle East, the Indian Ocean and the Timor Sea began.
Meanwhile, an uncomfortable number of unsuccessful exercises in national security secrecy seem to suggest that more than hypocrisy and lying is involved. A great blanket has been thrown over boat people "disruption operations" in Indonesia and Sri Lanka, and over what has been done, over the past decade, to repel boat people on the water. It's claimed, conveniently, that this is so the evil people smugglers will gain no inkling of the methods of our counter-operations, and that the fact that what occurs cannot be explained or described to Australian citizens is but an accident. No doubt it will be addressed when General Angus Campbell leads the victory parade, 40 years hence, when the truth at last can be told. Yet there are very good grounds for suspecting that the primary reason for the secretiveness is that Australians might not be so comfortable if they saw the digital images of what is done in their name.
Meanwhile, a wide range of folk are getting exercise at the ambit claims involved in the draft bills. Former Liberal ministers, such as Andrew Robb, seem to think themselves targeted as an agent of a foreign power (China), as do Australian bishops (the Vatican), academics (the paid-trip conference gravy train), journalists and lawyers (Hades), even the Inspector-General of Security. The government is gamely pretending there are widespread exemptions covering freedom of speech, the proper activities of journalists (at least so long as they are engaged in fair and accurate reporting – a fresh, and perhaps sinister requirement), whistleblowers and others going about their business. The fears are compounded by efforts to widen the reach of national security to include commercial trade secrets and private infrastructure, and very ambitious efforts to widen, not narrow, secrecy provisions in the general law.
I expect most Australians would agree in principle with the idea that people who are lobbying on behalf of foreign powers should be registered, or at least known, just as they would agree with provisions in an electoral bill that foreign donations to political parties should be banned. But the bills go much further than that, and with a strange zeal not (for example) evident with legislation, such as it is, guiding the activities of ordinary lobbyists. And there's more than a whiff of ASIO's taking old "agent of influence" theories out for a walk again. Such agents exist, but they are better exposed by well-briefed counter-influence than by being interned, tattooed and made to fill in forms.
Likewise, the activities, in Australia, of diplomats and others who spy on students and others from their country, or who apply pressure on relatives at home, need watching as ever. But most such surveillance and intimidation comes from within embassies, (and not only from China's – it is a problem with students from Singapore, Malaysia, Thailand and Indonesia, too). It is not prevented by anything in the draft bills, even if indignation about it fuels some of the zeal for something to be done.
I am worried about politicians and others (including journalists) in the pockets of the Chinese government, but I am equally worried about those who are in the pockets of other nations, including our allies, or some of the mega-multinationals, such as Apple or Google, or foreign ideologies and cults. I think it would be easier to establish that some Australians in the game of influencing public opinion are uncritical mouthpieces of the US Republican Party (or the Democrats), what Rupert Murdoch (a foreign citizen) thinks today, or Israel (or Palestine). China has some largely uncritical fans, and if they are on a Chinese payroll, we ought to be told. But one cannot prove an academic, journalist or politician to be a Chinese agent of influence merely by virtue of the fact that he or she says China is (a) here, (b) getting more powerful by the day, (c) has national interests of its own, and that (d) the Australian national interest, vis-a-vis China, differs from America's, Japan's or India's.
Actually, one can sincerely argue for several countries, or none, and one has not necessarily been corrupted simply because there is someone in a foreign government, or a foreign company, who is delighted to see such sentiments get a wider audience, and is willing to cough up for a conference or an airfare. One has not necessarily been bought, though I have always thought that a journalist should disclose the source of any "assistance" received. Whether that should be a duty imposed by law, or by an ethical duty of being honest to readers, is less clear, but, as a bit of an anarchist, I don't like being guided by policemen or bureaucrats.
ASIO has declared, without advancing a lot of actual evidence, that there are unprecedented activities by foreign spies and agents. The AG's submission has some helpful, if sometimes vague and unconvincing, case histories of the problem, but it is unclear to me that any could not be dealt with under existing law. ASIO has, in its day, nipped a bit of spying in the bud, but the dearth of, or failures of, prosecutions over the years owes much more to scarcity and poor evidence-gathering than to deficiencies in the law. Now that its activities are being "coordinated" with other security-minded agencies, it would probably be better if it had fewer, rather than more, powers and functions.
My guess is that none of these bills, whether in ambit or in much reduced form, will stop the leaking, or the reporting of leaks. As ever, most leaks come from people who have the power, if they want, to issue the information officially. Most of these are in ministerial offices, not at desks with locked drawers, or in buildings with razor wire.
Jack Waterford is a former editor of The Canberra Times. firstname.lastname@example.org