The RCIS – An insider's perspective
George Brownbill, former Secretary to the Royal Commission on Intelligence and Security (RCIS), presented this talk on the occasion of the public release of records of the RCIS.
The written paper that appears below is based on Mr Brownbill's speaking notes. It is not a word-for-word transcript of the audio recording of his talk.
Thank you for your welcome, Mr Director-General.
I must say that, when I consigned the RCIS records to the Department [of Prime Minister and Cabinet (PM&C)], I did not expect, thirty years later, to be talking about them and the work of two and a half years they represent. Since then, my advice or opinion on any of the issues we covered have not been sought by any government. Indeed, on completing what was a huge and demanding task, my reception by the mandarins of the day, on return to the Prime Minister’s Department, was such to make it clear I had rocked the boat badly. Pleasing the mandarins, however, is not the ultimate obligation of the civil servant.
I am really pleased to see June Hope here today, with her daughters Deb and Bess and their families. With the release of these papers, people will be able to see the extent of Bob Hope’s enormous contribution to the Australian nation.
I shall have more to say about the judge in a minute but I’d now like to introduce two others who are here
Les McBride and Ian Cunliffe
I want to acknowledge that my friends Les McBride and Ian Cunliffe are here today and I thank the Archives Office for having invited them.
Les was my first 2-I-C but, by the end of 1975, we gave him up to join ASIO [Australian Security Intelligence Organisation] as the Director of Personnel. As will appear below, this was part of an essential set of running repairs to ASIO and Les’ contribution was absolutely essential. Les reminded me the other day when I went to his home in Weetangera and made it clear that it was his national duty to go and help Ted Woodward clean out the stables.
Ian Cunliffe began as our legal officer and later my deputy. Justice Hope had a high regard for Ian’s ability and so did the Solicitor-General, the late Maurice Byers. I think he’s one of the best in the public law business.
Justice Bob Hope
I would also want to remember for a moment our Commissioner, the late Justice Hope. He was a man of very high intelligence, a great but innovative legal mind and a true liberal. He loved people – all and any people – and detested pomposity and pretentious self-importance. Thirty years ago, there were many in the bureaucracy and the intelligence community greatly impressed with their own self-importance, and I will have something more to say on this later. While always meticulously polite, he saw no reason to accord to persons in high places any greater deference or courtesy than the man or woman in the street.
In the examination of witnesses, he was, again, always polite, but the logic was merciless. ‘Those clear blue eyes’, I recall one intelligence community representative saying ‘have you pinned down at his mercy’.
The then prime minister, Mr Whitlam, appointed Bob Hope to run this Royal Commission for all these qualities, especially because of his reputation as a true liberal. His outspoken and fearless association with the Council for Civil Liberties, his patronage of the arts (especially theatre) and his judicial record of elegant and fair-minded judgments, were also all relevant.
Bob Hope was in line to be appointed to the High Court but the late Justice Murphy asserted claims to the vacancy which the Cabinet of the day did not resist.
The insider's view
When the Archives letter came inviting me to provide an ‘insider’s view’ of the RCIS, I wondered – how far in? Reading on in the letter, it became clearer. Not everything is being revealed, although a great amount is being. It behoves me, therefore, the letter said, to deal only with what is revealed. I should note here that I have had absolutely no input into the consideration that has gone into deciding what to reveal and what to withhold. I just hope I don’t say anything in breach of the laws of the Commonwealth.
Relations with the government of the day
First, however, I should say a bit about the judge’s relationship with the government of the day, through the two prime ministers who held office between 1975 and 1977. Although his late Honour’s appointment was made on the recommendation of the Whitlam government, in the event all reports were presented after Mr Fraser took office. As these two men’s respective roles changed, the Royal Commission maintained an intimate dialogue with each, whether as prime minister or leader of the opposition, as the case might be.
We saw to it from the start that both government and opposition understood our position. It was that both sides had appropriate ‘ownership’ of the intelligence and security endeavours of the Commonwealth. The prime minister of the day, when we asked him, would agree to the appropriate briefing of his counterpart in opposition. When it came to writing the reports, we made it clear that the intelligence security system was too important for Party games. In due course, the place of the leader of the opposition of the day in knowing about, and having some ownership of, these matters went into the legislation.
The first test of the principle came in September 1975, when it became apparent that the Director-General of ASIO needed to be replaced. I should perhaps not go too far into the reasons, other than to note that media gossip at the time relating to certain personal matters was not the deciding factor.
In accordance with proper process as we saw it, the judge briefed the then prime minister and Mr Whitlam found his reasons persuasive and so accepted the recommendation. The judge sought his agreement that Mr Fraser should also be briefed and, that agreement having been readily given, then spoke with Mr Fraser. Mr Fraser accepted the judge’s advice that a change of leadership was needed and it was announced by the government. Unfortunately, the shadow Attorney-General was not kept in the loop. The late Senator Greenwood made some remarks about ‘political interference in ASIO’. Soon thereafter, he was enlightened, because, in truth, the exact opposite was the case.
But this operation of the true spirit of our Westminster system was so remarkable that few at the time recognised the significance of what had happened.
The judge believed, and I do too, that bipartisan governance of the intelligence/security agencies was the most important recommendation to be made. This was also related to the need for the intelligence and security system to be an integral part of the processes of central government.
These days this central place of intelligence and security in the top machinery of government is an unremarkable aspect of government process. It was not always the case.
ASIO and politics
I will have more to say later about the central role of these activities in government. But, just returning for a moment to the need for a bipartisan approach, I should make it clear that we found a security service that had been badly politicised.
It would have been much more serious if the ASIO operatives had been more competent. But, as it was, their scatter-gun approach to the investigation of ‘subversion’ resulted in an equally scatter-gun approach to the fulfilment of their true function – as the fourth arm of the defence of the realm.
A close reading of our Fourth Report will see references to the practice of the late Charles Spry, who for far too long was Director-General of ASIO, of slipping little bits of gossip to the prime minister or attorney-general. The ASIO files disclosed numerous cases where gossip and tittle-tattle about people and their so-called ‘Communist sympathies’ was recounted to certain figures in the Menzies governments and then revealed in some cases under parliamentary privilege. As we found with later and more detailed enquiry, much of this was no more than slander under privilege. That is, the evidence was just not there.
It would have been easy for the RCIS to go on a witchhunt to name and shame all those who had defamed many people for no more than views and opinions not shared by the majority. But the judge took the view that public confidence in robust and effective agencies was essential. So a strategic decision was taken not to point accusatory fingers. Rather, we needed to learn from mistakes and set up systems which would work for the future.
Both prime minister and opposition leader understood and endorsed this approach. And each maintained it as their roles changed.
The practice of tittle-tattle in the name of security was anathema to Hope, including because it damaged in the public mind the whole case for a good intelligence and security system.
Good intelligence and security is essential
The judge was committed to a strong intelligence and security system. Evidence available to the Commission established that Australia had faced, and did at the time face, serious challenges through espionage and other forms of clandestine or covert attack on our democracy. There was – and in my view there remains – no doubt that we needed an effective intelligence gathering capability.
The issue in front of the RCIS was – do the existing agencies deliver these services effectively. That is, is Australia well protected by its security intelligence and well enough informed by its foreign intelligence?
Regrettably, and especially in the case of ASIO, the RCIS report card too often had to record ‘could do better’. Even ‘could do a lot better’. Or even ‘send them back to first grade’.
Legitimising the intelligence and security system
It was urgent, it was essential, that the intelligence agencies be brought within the central machinery of government. Yet what Hope found were agencies:
- outside government, almost antipathetical to their political masters (a problem which presented acutely with the 1972 change of government)
- poorly staffed (but with many, many good people) poorly managed, and under-resourced
- in an uncharted no-man’s-land, when it came to legal powers and discretions – and this in an area which trenched so directly on people’s rights and freedoms, and
- without any clear or coherent directions as to targets or priorities
The RCIS tried to reverse those problems. We tried to fix up the political issues, the resource constraints, and to set out people’s rights. We tried also to propose machinery so that these things would be clearer and governments would have proper control but also take proper responsibility. In short, we tried to normalise this whole function of government.
The Western alliance – quis custodiet ipses custodes?
The Royal Commission also had no quarrel with the basic need for Australia to maintain strong and intimate links with ‘our great and powerful friends’. Because of the particular circumstances after the Second War and the emergence soon after that of the Cold War, Australia had, and continues to this day to have, a very significant place within the Western alliance. Both Britain and the United States have close ties with the Australian intelligence community, and in a different way, with Canada and New Zealand.
We found, in fact, that the Australian intelligence agencies were more highly regarded and better respected in London or Washington than amongst those in the Australian departments who imagined themselves the absolute guardians of the Western alliance. It has to be said, too, that they saw our Australian system’s failings with far clearer eyes than those who imagined themselves well equipped in that regard.
The late Arthur Tange, for example, had such a high opinion of his public duty in this regard that he decided that the RCIS should not be told too much. To do so, it seemed to Tange, would put the Western alliance in jeopardy. But those with whom we related in London and Washington took a different view. They saw to it that we were briefed on every aspect, no matter how secret. Indeed, they imparted to the judge and me matters that had never before been revealed to any Australian officials. These matters included, although were not limited to, some very candid assessments of relevant Australian departments and agencies.
I was encouraged by them to develop close relations with the relevant people posted in the British and American missions in Canberra and was regularly briefed, including particulars of matters they had been ‘asked’ by Australian officials to withhold from us.
These actions by Australian self-appointed protectors of the Western alliance were, quite probably, in contempt of the Royal Commission. So far as I could tell, they were not sanctioned by Australian ministers (whether Labor or Liberal). In my view, they were not in the national interest, albeit strenuously and self-righteously claimed to be so.
The euphoria of secrecy
CP Snow, in his famous depiction of the British civil service in The New Men, observes how various mandarins get afflicted with what he calls ‘the euphoria of secrecy’. It is rather human to feel good because you know something and other people don’t know and can’t be told. The ‘need to know’ principle is a fundamental intelligence officer’s operating code and it is necessary. But, once you get bitten by the secrecy bug, you have to be very careful not to confuse your pride with a dispassionate judgment about who needs to know what; and who doesn’t need to do so.
Confronted for the first time in their lives with a Royal Commissioner whose powers of inquiry were unlimited, it was perhaps understandable that many in the departments and agencies substituted their own view of ‘need to know’ for their legal obligations. It has to be said, too, that, by 1975, the Labor government had lost the confidence of many senior officials.
Over the past thirty years, many who were inside the departments and agencies have confirmed to me that they were under severe constraints in what contacts they could have with the judge or me or any of the staff. How often have I had confirmed what we guessed – every word or gesture was to be reported back. And how often we would meet people, only to see the eyes quickly averted.
The Royal Commission’s approach was thus cautious and friendly where people would let us be. As time passed and the government changed, the judge and the staff gained a ‘formidable’ knowledge of the system – this is the late Harvey Barnett’s word. Few had the opportunity for the overview the Royal Commission gained.
And, as time passed, we also encouraged each of the agencies to tell what they knew of the other agencies, but which the latter would prefer to remain hidden. The insights thus gained, amplified and expanded on in the contacts with foreign players as I’ve described, cancelled out much of the deception, dissimulation, delaying tactics and suppression of information.
Of course, we sought always to verify – or otherwise – what we were told.
How the RCIS was run
Having made these general observations, I want now to say something about these things:
- how we set up our secretariat
- operating procedures
- our relationship with departments and the agencies
- how we related to the Western intelligence community
- what were the guiding principles that emerged
The Royal Commissions Act
Justice Hope was the sole commissioner appointed by letters patent under the Royal Commission Act 1902. I kept a copy of that Act on my desk at all times during my time as secretary.
A Royal Commission is not an arm of the judiciary. It is the highest and most independent form of enquiry by, and for, the executive government. A Royal Commission is a more modern and – one hopes – more humane descendant of the Court of Star Chamber.
The Australian Act gives a royal commission all the powers and immunities of a senior court and all the capacity for action available to a minister. It has powers of compulsion and can punish anyone in contempt.
I do not think many in the departments and agencies really understood this. As I’ve said, the judge was always courteous, patient and dignified in his dealings. In private, in conversations with me and the rest of the staff, he made it clear that he was alive to the actions of some. He found ways to make it clear that he was not going to take any nonsense.
It did mean, however, that we soon found that nothing could be taken for granted. We soon found that, if the written submissions seemed to us to be incomplete, inadequate or not based on correct assumptions, they probably were. And, in many such cases, later responses confirmed these judgments, or impressions.
I had worked with Justice Hope during 1973–74 as Secretary of the National Estate Committee, which he chaired. When, after the 1974 elections, the government was returned, preparations were made for the Royal Commission, which had been on the cards ever since Attorney–General Murphy ‘raided’ ASIO in March 1973. It was part of the commitments made by the incoming government before the 1974 double dissolution election.
Justice Hope and I had become good friends and he approached me to act as Secretary to the RCIS. Of course, the mandarin establishment would have liked one of their own – to make sure no boats were rocked. That was made very clear to me later.
In very late 1974, I started to get a small staff together. We were never more than a dozen or so. We were able to get quarters inside West Block, then tenanted by PM&C. We blocked off one wing to the rear of the top floor, put in a door with a cipher lock and had an AFP [Australian Federal Police] officer on guard 24/7.
I asked ASIO to install a secure electronic perimeter. Just to be on the safe side, however, I got the special operations people from ASIS to put in another inside the ASIO one.
I also insisted that all our staff had top secret clearances as provided for in the protective security handbook. As our inquiry progressed, it was apparent that this process, as it was then administered by ASIO, left much to be desired. These issues are dealt with in the Second and Fourth Reports. At the time, however, I considered it essential that our staff be cleared in accordance with established processes, for reasons I’ve just referred to.
Most staff were also inducted into the ‘caveat’ or ‘codeword’ arrangements in place regarding the activities (and at that time, even the very existence) of the agencies. Our contacts in the US and Britain arranged special high-level clearances for the judge and me.
I was also determined that existing and mandated procedures for paper handling, communications security and personal discretion, should be observed to the letter within the secretariat.
This was all before the days of word processors, emails or even faxes. So the procedures were onerous and iterative. But we stuck with them sedulously.
I want to record here my admiration and affection for all the people who formed the team. As I have noted, some people were not very nice to us. We stuck together – played a lot of squash and made friends for life.
The judge and his associate worked out of chambers in Sydney but most weeks he and she would be with us in Canberra for some days or with us on the road.
The RCIS was unusual for a Royal Commission. In fact, it was probably unique. For a start, by far the greater part of our work had to be conducted in secret. The minimum classification of practically all our files was SECRET and many were TOP SECRET. And it went up from there.
Secondly, no counsel assisting was appointed. The normal tasks of such a person were my responsibility. When specific legal issues arose, the judge himself or Ian Cunliffe dealt with them. We had reasonably frequent access to the shrewd and very learned Solicitor-General, Maurice Byers. Among the records of the RCIS are several very detailed, and very fundamental, briefs for advice from the Solicitor-General and, as relevant, the judge based his views on that advice.
Thirdly, the judge insisted on the greatest possible informality in his enquiry. There was no counsel assisting, as I’ve said, and only one or two witnesses sought to be legally represented in hearings. There were, in any event, very few public hearings and these were not curial but rather more roundtable in style and atmosphere.
Many – most, in fact – witnesses were interviewed in private. Sometimes by the judge, with me taking notes; sometimes another staff member. Sometimes I or another staff would do the interviews. For the public hearings, and for some in secret, formal transcripts were done but in other cases the staff did records of conversation. Some interviews were taped, although only with the knowledge of the other side. I do not know whether, at this distance, the tapes remain readable.
The records of conversation were a fundamental resource for informing the Royal Commission. We tried to make them as relevant and accurate as we could, for in a very real sense, they were the ‘evidence’ on which findings were based.
I record here that I maintained informal contacts with a number of persons inside the agencies. They made these at considerable risks to themselves. You will not find their identities in these records; nor will I reveal them (ever).
Submissions were invited from the agencies and departments, and the public. Those from the public were chiefly significant, not for the facts alleged, but for the insights we gained into the public’s perceptions or misconceptions about ‘ASIO’. For most, that meant the whole secret world.
Submissions from the agencies led to a series of interrogatories. As I’ve said above, it became clear that not everything was being revealed and, in some cases, consideration was given to citing persons for contempt of the Commission. But some firm but gentle representations by the judge led to significant improvement in the flow of information and the revision of past untruths.
Relationships with departments and agencies
All departments and agencies were invited to make submissions and many did. State governments and in particular, the police special branches, were invited to provide information.
The Commission made contact with practically every former prime minister, attorney-general, foreign minister and defence minister still alive or available. Many were interviewed.
The principal departments of relevance to the RCIS were Foreign Affairs, Defence, Attorney-General’s and PM&C. Treasury (in those day it included Finance) and the Audit Office were also interviewed.
Foreign Affairs and Defence just wanted the status quo maintained. Through the JIO [Joint Intelligence Organisation], both departments exercised a hegemony of oversight of both the operations of the agencies, the determination of priorities, and what was said to ministers. Beyond this, Foreign Affairs pretty well wanted ASIS [Australian Secret Intelligence Service] either cut back severely or even abolished altogether.
Some of the agencies and one department appointed, at my request, liaison staff who actually worked within the secretariat. Some helped us draft the relevant report. I am grateful to them all for their friendship and cooperation and for the significant contributions they made to the work of the RCIS.
Among those who were consultants to the RCIS, I want to mention Bill Robertson. In late 1975, Bill was unjustly dismissed by the then government. The judge sought the incoming prime minister’s agreement to our engaging Bill, who has a lifetime’s experience of intelligence business. Mr Fraser agreed. I record with admiration and appreciation Bill’s many contributions to the work of the RCIS.
Relations with other countries
I have already described how agencies in Britain and the US volunteered a measure of candour and cooperation with us that their Australian counterparts had not. As well, we visited both countries and quite a few others. The judge was received in Washington and London at the very highest levels of government and not just for courtesy visits. The records show that there were substantial discussions with a very wide range of Ministers and officials, including the heads of CIA, NSA, FBI, DIA, MI5, MI6, GCHQCIA – Central Intellience Agency; NSA – National Security Agency; FBI – Federal Bureau of Investigation; DIA – Defense Intelligence Agency; MI5 – Security Service; MI6 – Security Intelligence Service; GCHQ – Government Communications Headquarters and other less well known acronymic entities.
The overriding takeout from these international encounters was the need for the Australian intelligence and security apparatus to be incorporated into the heart and centre of national government. This is reflected in the range of proposals set out in the Third Report, to which I’ve already referred.
The other takeout needed time for us to come to appreciate. Although discreetly and delicately presented, there was a palpable sense of international concern that our agencies here needed more than to be ‘supervised’ by the Defence/Foreign Affairs hegemony. The right place for oversight was the Cabinet Office or its equivalent.
This idea found ready acceptance with the judge and also found expression in the Third Report.
I will now try to look back at the outcome of two and a half years’ work and to highlight what seems to me to be the main things that the RCIS found and what its reports achieved.
A rationale and legitimacy for our intelligence services
The RCIS recognised early on that Australia needs good intelligence and security services. We need these to fulfil the fundamental and first duty of any government – the security and defence of Australia’s people. But we also needed to play our part in the Western alliance. We had to punch at least at our weight and if possible even above our weight. Doing so, his late Honour clearly believed, would feed into and advance that first and basic objective.
Our agencies are an important part of the defence of the realm. They are central to government: consider how important Walsingham was to Queen Elizabeth I or MI5 in defeating Hitler. Consider also Mossad or the KGB.
Out of these ideas grew all the concepts we developed, overall in the Third Report and in particular for each of the agencies in the relevant reports. We urged that all of them be located in the national capital – how could it be otherwise? We proposed that ministers and departments accept true responsibility for the services. We expected they would be proud of them and that the services would gain in morale and status, properly resourced and professionally managed.
Responsibility and propriety
The other side of the coin, however, was that the services were responsible for their actions, to the government of the day, to the parliament, to the auditor-general, and to the Australian people whom they existed to serve. While we are a part of the Western alliance, first and foremost we are Australian and our responsibility is to Australia.
We proposed the services be declared to the public and that they be given clear mandates by legislation of the parliament. We proposed a central apparatus, within the prime minister’s portfolio, for the control and coordination of these important activities, reporting through Cabinet to the prime minister.
All this has come to pass.
Legality and propriety
In a famous passage in the Fourth Report, the judge says that ASIO must observe principles of both legality and propriety. The legality you could put into the statutes, and that was largely done.
But the propriety also depends on the calibre and morale of staff. It depends on a vigilant, but properly informed and advised, government and parliament and machinery for accountability. And it depends on the status of the agencies in the minds of their fellow Australians.
Recommendations to give practical effect to these objectives were made in the various reports.
And all these came to pass.
Intelligence gathering – priorities
While ‘defence intelligence’ – orders of battle of the Ruritanian Army and how many ships in the Swiss Navy – are important there is a need for national intelligence and this is about more than military defence. This need must be prioritised, depending on the government’s policy and operational priorities.
The RCIS saw a need for a broader definition of what information a modern government needs from secret sources. These cannot be mediated through a Defence/Foreign Affairs hegemony, devoid of any Cabinet-level coordination. Ministers must decide – what do we want to know more about? What is important to Australia’s national interest? In particular, what about so-called ‘economic’ intelligence?
Another aspect of this is the need to accept that the intelligence Australia needs, or should know about, may not always be what the Western alliance needs or wants. We may even want to know about them. This idea was shocking to some who apparently believed Australia only existed to serve other nations’ interest.
So came about the proposals that were advanced for what the Third Report called the ‘new agency’, centrally located, responsible under legislation setting it up, to the prime minister. There, priorities for collating and assessing were to be set. In consequence of those priorities, resources could then be allocated rationally.
We know this ‘new agency’ now as the Office of National Assessments (ONA). I was gratified, a few years ago, when the then Director-General, Kym Jones, invited me to the 25th anniversary of ONA. More gratifying was the roll-up of the most senior civilian and military leaders of departments and agencies, and of the prime minister and the full retinue of senior ministers. In his remarks, then prime minister Howard made clear the very high standing ONA and the intelligence agencies have in present day government. I have little reason to doubt that the same attitude remains, although the prime minister has moved on and a new one taken over.
The reports and other papers being released today will thus show just how far we have come. And it has been along the road Hope mapped out.
Intelligence gathering and law enforcement
One of people’s great fears, and rightly, is of ‘secret police’. We found the state police special branches were, if that is possible, worse than their ASIO counterparts in their disregard of due process, careful intelligence gathering and assessment, and their lack of accountability.
ASIO had only ever been intended to be an intelligence collection and assessment agency. If the law was broken, then it was a matter for the law enforcement authorities. While police and intelligence agencies could (and should) work together, it was essential, the judge believed, for their lawful roles to be separated. Unhappily, in recent changes to the law, this fundamental principle has been muddied. In my view, that has been a source of difficulty for both ASIO and the Federal Police. But this view is based on published sources only.
Thirty years on
Thirty years on, I believe we can look back with some pride and satisfaction at these reports. They provided clear signposts to the future. They pointed to a new, better and more respected and effective place in our polity for these agencies. Which is as it should be.
Of course, reports, even of Royal Commissions, are nothing unless or until they are put into effect. It is, I believe, a measure of the great respect people had for Bob Hope that practically everything he proposed was accepted by the government of the day. And what wasn’t accepted the first time around came about later.
Finally, it is a measure of the true statesmanship of the prime minister of the time, Mr Fraser, that he saw to it that these reports were actioned. Vicious and vituperative attacks on Hope continued well after he was functus officio and I had returned to the Prime Minister’s Department. In spite of stentorian rearguard actions, the structures, laws, procedural and management reforms were achieved. Australia is much better off for it.