Gabrielle Chan
January 2, 2015
The 1988-89 cabinet papers reveal minister agreed not to table the new powers in parliament or to allow them to be scrutinised by the newly established parliamentary joint committee on Asio
Lionel Bowen, pictured here talking to prime minister Bob Hawke, pushed for an early decision on expanding Asio’s powers. Photograph: National Archives of Australia
The Hawke cabinet approved guidelines for the Australian Security Intelligence Organisation to spy on Australians to gather foreign intelligence, newly released cabinet documents have revealed.
The cabinet agreed not to table the new powers in parliament or to allow them to be scrutinised by the newly established parliamentary joint committee on Asio.
The 1988-89 cabinet documents, released on Thursday by the National Archives, show Bob Hawke’s Department of the Prime Minister and Cabinet was deeply suspicious of the attorney general’s guidelines to extend Asio’s powers to cover Australian citizens but the cabinet’s security committee approved the decision.
The cabinet also approved related rules on intelligence gathered by the country’s overseas intelligence agency, the Australian Secret Intelligence Service (Asis).
In 1988-89 the cold war was still alive but waning. Asio had undergone a decade of change, started by the the first royal commission in 1974, established by the Whitlam government under Justice Robert Hope. That process led to changes brought in by the Australian Security Intelligence Organisation Act of 1979. A year after its election in 1983, Labor established a second inquiry – the royal commission into Australia’s security and intelligence agencies, also under Hope – which provoked another shakeup in national security and intelligence services.
As a result, the attorney general was given more powers over Asio and Asio was given powers to collect foreign intelligence in Australia.
Previously, warrants could not be issued for the collection of intelligence relating to foreign groups or powers from Australian citizens and permanent residents. In a submission on 2 June 1988, the attorney general, Lionel Bowen, argued this provision limited Asio’s powers, while noting it was a “sensitive subject”.
“This provision does not rule out the situation, however, where an Australian is the only practicable vehicle by which foreign intelligence information can be collected about a ‘foreign’ target,” Bowen said in the submission.
He said there could be some cases in which information about Australians was collected “incidentally or by their deliberate involvement with a target, eg an Australian citizen aiding or abetting a foreign-sponsored terrorist effort”.
But in those cases the attorney general could impose restrictions to minimise the collection or retention of such information.
Bowen argued that the Asio act required tabling of any guidelines to the director general of security, unless it would “prejudice security”. In this case, Bowen said, it would draw further attention to the new Asio powers.
“Further, publication of the guidelines would prejudice the conduct of Australia’s international affairs, because it would focus the attention of overseas countries, and foreign representation in Australia, on this aspect of Asio functions,” Bowen wrote.
But the prime minister’s department pushed back, suggesting there had not been appropriate time to consider the changes, in a familiar echo of today’s security debates. And, like today, Bowen argued the decision should be made at “an early time”.
The department noted the proposal was out of step with Hope’s royal commission finding that “communications by or with Australian citizens should not be collected and, if accidentally collected, should be destroyed”.
It also noted the proposal was at odds with the then rules on foreign intelligence gathering which “prohibit DSD [the Defence Signals Directorate]deliberately intercepting a ‘foreign communication originated by, or directed to, an Australian person’ – whether the person is in Australia or overseas – for the purpose of collecting foreign intelligence (unless related to security or serious crime)”.
The department argued the proposed guidelines should be subject to further consideration but the security committee of cabinet approved Bowen’s requests for guidelines which allowed warrants to be issued for putting Australians under surveillance to gather foreign intelligence “where it cannot be reasonably collected by other means”.
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