tag:theconversation.com,2011:/us/topics/australian-intelligence-community-52836/articlesaustralian intelligence community – The Conversation2018-09-13T07:17:42Ztag:theconversation.com,2011:article/1031642018-09-13T07:17:42Z2018-09-13T07:17:42ZAs Witness K trial opens, questions over how much of Timor-Leste spying case to keep secret from public<figure><img src="https://images.theconversation.com/files/236146/original/file-20180913-133904-92wnq3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Witness K and his lawyer are accused of conspiring to reveal that Australia's former foreign minister ordered an espionage operation against East Timor's government.</span> <span class="attribution"><span class="source">Antonio Dasiparu/EPA</span></span></figcaption></figure><p>The <a href="http://www.abc.net.au/news/2018-09-12/witness-k-bernard-colleary-spy-case-reaches-court/10237860">first step</a> in the trial of the former Australian spy known only as Witness K and his lawyer Bernard Collaery has taken place in the ACT Magistrates Court. </p>
<p>The two are accused of conspiring to reveal that former Foreign Minister Alexander Downer <a href="https://www.theaustralian.com.au/national-affairs/foreign-affairs/aussie-spies-accused-of-bugging-timor-cabinet/news-story/3151bbc5a41d3ac76def4b5bfacce661">ordered an espionage operation</a> against the government of East Timor in 2004 in order to gain an advantage in oil and gas negotiations with the newly independent state. Lawyers for both defendants faced off against the prosecution in a small courtroom presided over by Chief Magistrate Lorraine Walker. </p>
<p>Although the directions hearing lasted only 15 minutes and covered preliminary formalities, enough was said to shed light on what is at stake in the case ahead.
The prosecution wants as much of the case as possible to be heard in secret; the defence wants to keep secret only what’s necessary to protect Australia’s national security. </p>
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Read more:
<a href="https://theconversation.com/when-whistleblowers-are-prosecuted-it-has-a-chilling-effect-on-press-freedom-in-australia-100008">When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia</a>
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<p>The prosecution offered “proposed orders” for the magistrate to sign that would effectively ensure a closed trial. </p>
<p>Witness K’s lawyer, Haydn Carmichael, responded by supporting the ongoing suppression of K’s real name. He said that such “anonymity is desired by him and is also a practical solution to possible questions that might arise as to national security.” </p>
<p>To understand the importance of this, it’s worth remembering that the Australian Secret Intelligence Service requires a high degree of operational secrecy. It needs to reassure its agents overseas that it will never reveal their identities. If foreign governments were to learn K’s real name, they might be able to identify his agents in their countries and take countermeasures against them. </p>
<p>Such governments might also be able to take reprisals against K or his family if the opportunity arose. Failure to keep K’s identity secret would also affect ASIS’s credibility in its other operations. People who betray their country would no longer dare risk their safety by dealing with Australia’s spies. </p>
<p>The opening phase of the trial showed both Collaery and Witness K are fully committed to keeping these key pieces of information secret. </p>
<p>However, Carmichael added that anything on the charge sheet apart from K’s real name “is not subject to a claim of national security classification.”</p>
<h2>Public interest vs national security</h2>
<p>The more expansive secrecy desired by the prosecution is another matter altogether. If granted, it would prevent the public from hearing defence evidence that the 2004 bugging operation could itself be considered a crime – a conspiracy to defraud the government of East Timor under <a href="https://law.anu.edu.au/sites/all/files/events/national_security_legal_professional_privilege_and_the_bar_rules_print.pdf">Section 334 of the Criminal Code of the ACT</a>. The defence would be unable to put forth evidence that the operation was planned and ordered in the ACT, as well. </p>
<p>This is a much more powerful legal argument than a moral argument against spying for economic purposes. </p>
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Read more:
<a href="https://theconversation.com/the-shaky-case-for-prosecuting-witness-k-and-his-lawyer-in-the-timor-leste-spying-scandal-100446">The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal</a>
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<p>This is the background of the case: Australia and East Timor met as joint venture partners with consequent mutual fiduciary duties under the 2002 Timor Sea Treaty. They negotiated production sharing contracts, supposedly in good faith. </p>
<p>The espionage operation occurred before and after the October 2004 round of negotiations, when East Timor’s Prime Minister Mari Alkatiri and Secretary of State Jose Teixeira briefed their cabinet colleagues about their negotiating position. Their briefings were bugged – an action that is alleged to have given Australia’s negotiators an unfair advantage. </p>
<p>Cheating or attempting to cheat a joint venture partner in this way is an offence that would carry heavy civil and criminal penalties under the laws of the ACT. </p>
<p>A court order to prevent the public from hearing this would avoid embarrassing the Australian government, but it is arguably irrelevant to national security. </p>
<p>Witness K’s lawyer also urged the magistrate to exercise her “independent function” in determining what constitutes grounds for national security exemptions, and not to accept the prosecution’s claims at face value. </p>
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Read more:
<a href="https://theconversation.com/lawyer-and-witness-face-charges-under-spy-laws-raising-questions-of-openness-and-accountability-99143">Lawyer and witness face charges under spy laws, raising questions of openness and accountability</a>
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<p>Underpinning this request is a <a href="http://eresources.hcourt.gov.au/showbyHandle/1/12378">1982 case</a> between the Church of Scientology and the Australian Security Intelligence Organisation. In this case, the High Court was asked to determine whether it could prevent ASIO from investigating the church in circumstances where it claimed it did not pose a risk to security. </p>
<p>The High Court found against the church but added:</p>
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<p>The court is not bound by the organization’s (ASIO’s) opinion as to what constitutes security or what is relevant to it.</p>
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<p>Despite claims that intelligence and national security are too complex to be understood outside the intelligence community, courts routinely evaluate far more complex evidence in other areas: elaborate taxation schemes, labyrinthine trust arrangements, recondite mergers and acquisitions, sophisticated forensic evidence in criminal trials, and so on. </p>
<p>According to the defence’s argument, the ACT Magistrates Court is within its power to form its own opinion and not defer reflexively to the prosecution’s view of what constitutes national security. </p>
<p>The case has been adjourned until 29th October.</p><img src="https://counter.theconversation.com/content/103164/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clinton Fernandes receives funding from the Australian Research Council.</span></em></p>The prosecution wants a closed trial, while the defence wants to keep secret only what’s necessary to protect Australia’s national security.Clinton Fernandes, Professor, International and Political Studies, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/944222018-05-09T20:26:04Z2018-05-09T20:26:04ZExplainer: how the Australian intelligence community works<figure><img src="https://images.theconversation.com/files/218210/original/file-20180509-34021-zjlpgv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malcolm Turnbull has put Peter Dutton at the head of the Home Affairs super portfolio.</span> <span class="attribution"><span class="source">AAP/Glenn Hunt</span></span></figcaption></figure><p><em>This article is the first in a five-part series exploring Australian national security in the digital age.</em></p>
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<p>National security, intelligence and espionage have been in the headlines due to events abroad and significant developments at home. News of <a href="https://www.theguardian.com/australia-news/2018/mar/31/two-australian-diplomats-to-be-among-59-expelled-by-russia">diplomatic expulsions</a>, <a href="https://www.smh.com.au/politics/federal/increasing-cyber-crime-attacks-costing-up-to-1b-a-year-20180410-p4z8ui.html">cyber-attacks</a>, <a href="https://www.dailytelegraph.com.au/news/nsw/spying-shock-shades-of-big-brother-as-cybersecurity-vision-comes-to-light/news-story/bc02f35f23fa104b139160906f2ae709">leaked documents about sweeping new surveillance powers</a> and the creation of a <a href="https://theconversation.com/the-new-department-of-home-affairs-is-unnecessary-and-seems-to-be-more-about-politics-than-reform-81161">new Home Affairs Department</a> make it hard to follow. </p>
<p>What’s more, everyone has heard of the CIA, for instance, but Australia’s own national security organisations are comparatively unknown. So how is intelligence gathered? What are Australia’s peak national security bodies and how do they interact?</p>
<p>Australia’s national security architecture consists of a number of federal government departments and agencies, with links to state government counterparts. These include the state police forces and counter-terrorism authorities. Those arrangements are in transition, the full details of which are still to unfold.</p>
<h2>The major players</h2>
<p>The peak national security body in the Commonwealth is the National Security Committee of Cabinet (<a href="https://www.directory.gov.au/commonwealth-parliament/cabinet/cabinet-committees/national-security-committee">NSC</a>). It includes the ministers of the principal departments concerned with national security, including the Departments of Defence, Home Affairs, Foreign Affairs and Trade, the Attorney-General, Prime Minister and Cabinet, and Treasury.</p>
<p>Several of the ministers on the NSC oversee a range of national security bodies. These have emerged as a result of trial and error, royal commissions and various reforms over several decades. </p>
<p>For starters, the defence portfolio includes a range of military intelligence units. There are hundreds of uniformed intelligence practitioners across the nation in the navy, air force and army, as well as in the Headquarters Joint Operations Command in Canberra. It also includes three of the nation’s principal intelligence agencies (with a mix of civilian and military intelligence practitioners): </p>
<p>• the Defence Intelligence Organisation (<a href="http://www.defence.gov.au/dio/index.shtml">DIO</a>), defence’s principal intelligence assessment agency</p>
<p>• the Australian Geospatial Intelligence Organisation (<a href="http://defence.gov.au/ago/">AGO</a>), responsible for satellite and aerial imagery intelligence, maps, nautical charts and related geo-spatial products </p>
<p>• the Australian Signals Directorate (<a href="https://asd.gov.au/">ASD</a>), responsible for the collection and processing of signals intelligence (essentially, eavesdropping on radio and electronic transmissions). </p>
<p>ASD’s motto, “to reveal their secrets and protect our own”, captures the essence of its functions, which have been the subject of <a href="https://www.dailytelegraph.com.au/news/nsw/spying-shock-shades-of-big-brother-as-cybersecurity-vision-comes-to-light/news-story/bc02f35f23fa104b139160906f2ae709">recent controversy</a> after leaked documents proposed giving the ASD domestic surveillance powers. </p>
<p>The antecedents of these defence agencies date back to the intelligence organisations established, alongside their American and British counterparts, during the second world war. The ties to that era have endured in the so-called “Five Eyes” intelligence arrangement. </p>
<p>Initially focused on signals intelligence (the principal remit of ASD), Five Eyes is a trusted network between the US, Britain, Australia and the two other predominantly English-speaking allies from that era, Canada and New Zealand.</p>
<p><a href="https://web.archive.org/web/20131204055230/http://www.cdfai.org/PDF/Canada%20and%20the%20Five%20Eyes%20Intelligence%20Community.pdf">The title</a> was a derivative of the stamp used to restrict the dissemination of sensitive intelligence to a particular classification: “SECRET – AUS/CAN/NZ/UK/US EYES ONLY” – hence Five Eyes.</p>
<p>Nowadays, the network extends beyond signals intelligence and defence circles to include a broader range of departments, including the Department of Foreign Affairs and Trade (<a href="http://dfat.gov.au/pages/default.aspx">DFAT</a>).</p>
<p>DFAT is Australia’s principal agency <a href="http://dfat.gov.au/about-us/Pages/about-us.aspx">tasked with</a> “promoting and protecting our interests internationally and contributing to global stability and economic growth”. As part of that role, it is responsible for diplomatic reporting. Much of the information Australia gathers from counterpart governments abroad is collected openly, but discreetly, by Australia’s diplomats. </p>
<p>In addition, the Australian Secret Intelligence Service (<a href="https://www.asis.gov.au/">ASIS</a>) is in the foreign minister’s portfolio. Established in 1952 and tasked with the collection overseas of secret intelligence, the <a href="https://www.asis.gov.au/About-Us/Overview.html">ASIS mission</a> is listed as being “to protect and promote Australia’s vital interests through the provision of unique foreign intelligence services as directed by the Australian Government”. This is otherwise known as human intelligence collection or, in traditional terms, foreign espionage.</p>
<p>Countering foreign espionage (particularly from Soviet, later Russian and other countries operating in Australia) is the remit of the Australian Security Intelligence Organisation (<a href="https://www.asio.gov.au/">ASIO</a>). Established in 1949, ASIO has been part of the attorney-general’s portfolio until now.</p>
<p>Today, <a href="https://www.asio.gov.au/our-purpose.html">ASIO’s purpose</a> is described as being to “counter terrorism and the promotion of communal violence”, “counter serious threats to Australia’s border integrity”, “provide protective security advice to government and business” and “counter espionage, foreign interference and malicious insiders”.</p>
<p>The Office of National Assessments (<a href="https://www.ona.gov.au/">ONA</a>) is Australia’s peak intelligence assessment agency. It was established in 1977, after the <a href="http://www.naa.gov.au/collection/explore/security/royal-commisson/">Royal Commission on Intelligence and Security</a> commissioned by then Prime Minister Gough Whitlam and chaired by Justice Robert Marsden Hope.</p>
<p>ONA was established to help coordinate priorities across related intelligence agencies. Today, it is charged with assessing and analysing international political, strategic and economic developments for the prime minister and senior ministers. ONA draws on the intelligence collected by the other intelligence agencies, as well as unclassified, or “open source”, intelligence and material provided by international partners.</p>
<p>The agencies mentioned so far – ONA, ASIO, ASIS, AGO, ASD and DIO – form what has come to be known as the Australian Intelligence Community (AIC). The AIC emerged from the reforms initiated by Justice Hope in the 1970s and 1980s, notably following the 1977 commission and the 1985 Royal Commission on Australia’s Security and Intelligence Agencies. The combined effect of these commissions was that ONA was tasked with coordinating intelligence priorities along with the other agencies. </p>
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<img alt="" src="https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=470&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=470&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214224/original/file-20180411-554-jflaf8.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=470&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The tangled web of the Australian Intelligence Community.</span>
<span class="attribution"><a class="source" href="https://www.ona.gov.au/about-ona/overview/australian-intelligence-community">Office of National Assessments</a></span>
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<h2>A greater level of scrutiny</h2>
<p>Another mechanism that emerged during this period was the office of the Inspector General of Intelligence and Security (<a href="https://www.igis.gov.au/">IGIS</a>), currently held by former Federal Court judge Margaret Stone. Established in 1987 with the enduring power of a royal commissioner, the IGIS has extraordinary powers to inspect and review the operations of AIC agencies. </p>
<p>The Parliamentary Joint Committee on Intelligence and Security (<a href="https://www.aph.gov.au/pjcis">PJCIS</a>) exists to provide a level of parliamentary oversight, complementing the work of the IGIS. It conducts inquiries into matters referred by the Senate, the House of Representatives or a minister of the Commonwealth government.</p>
<p>The <a href="https://www.legislation.gov.au/Details/C2016C00596">Intelligence Services Act 2001</a> saw legislation more closely account for the functions that AIC members were expected to perform and the Inspector General monitors. In addition, an Independent <a href="http://www.inslm.gov.au/about">National Security Legislation Monitor</a> (INSLM) was established.</p>
<p>The <a href="https://www.pmc.gov.au/national-security/2017-independent-intelligence-review">2017 Independent Intelligence Review</a> was the third such review since 2001. As part of the review, ONA is <a href="http://www.abc.net.au/news/2017-07-18/malcolm-turnbull-announces-new-office-of-national-intelligence/8719672">to become</a> the Office of National Intelligence (ONI), exercising oversight of the expanded National Intelligence Community (NIC). This covers the initial six AIC members and four additional ones described below.</p>
<p>In addition, ASD is being established as a statutory body (still under the defence minister, but administered separately from the rest of the Defence Department) alongside other principal agencies ASIO and ASIS.</p>
<h2>An expanded community with ambiguous oversight</h2>
<p>The ONI is now tasked with overseeing implementation of recommendations arising from the 2017 review. This includes managing the four-body expansion to the ten-agency NIC. </p>
<p>These four bodies have played an increasingly prominent national security role since 2001. They are:</p>
<p>• the Australian Federal Police (<a href="https://www.afp.gov.au/">AFP</a>), with a remit for criminal intelligence and counter-terrorism</p>
<p>• the Australian Transaction Reports and Analysis Centre (<a href="http://austrac.gov.au/about-us/intelligence">AUSTRAC</a>), Australia’s specialist financial intelligence unit</p>
<p>• the Australian Criminal Intelligence Commission (<a href="https://www.acic.gov.au/">ACIC</a>), responsible for “investigative, research and information delivery services work with law enforcement partners”. </p>
<p>• the Australian Border Force (<a href="https://www.homeaffairs.gov.au/australian-border-force-abf/who-we-are">ABF</a>), described as Australia’s customs service and an “operationally independent” agency in the Home Affairs portfolio.</p>
<p>These agencies work in conjunction with other AIC agencies as well as state police and security counterparts.</p>
<p>The 2017 independent review was announced at the same time the new Home Affairs Department was made public. These four bodies are among the agencies transitioning to the Home Affairs portfolio. This has complicated arrangements for implementing the review recommendations and left considerable ambiguity concerning overlap of changed arrangements.</p>
<p>The INSLM certainly has a significant task as well and the PJCIS will be growing in staff to meet the expanded set of responsibilities outlined by the 2017 review as our intelligence community grows from six to ten agencies. </p>
<p>Implementing the 2017 review recommendations alone presents a significant challenge. The creation of Home Affairs on top of this adds to the complexity at a time of growing security challenges.</p><img src="https://counter.theconversation.com/content/94422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Blaxland is one of the principal authors of the three-volume official history of ASIO</span></em></p>The recent creation of the Home Affairs super portfolio has added another four agencies to the national intelligence community. Here’s how they work together.John Blaxland, Professor, Strategic and Defence Studies Centre, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.