Spook Show

On Royal Commissions, Crime Commissions, and Who Gives Permission?

Here’s a hard quiz night question - how many intelligence agencies are there in Australia?

In the weeks since the Bondi terror attack and the subsequent policy quagmire it’s triggered there’s been a lot written about the big 3, with (perceived) principle responsibility for counter terrorism, ASIO, ASIS, AFP - but how many are there really?

The answer is 29. Split between State and Federal Governments. There are 29 intelligence agencies in Australia.

The States have 17 - these are the criminal intelligence bureaus of each State and Territory Police Force, the New South Wales Crime Commission, the Queensland Crime and Misconduct Commission, and the Western Australian Crime and Misconduct Commission. Other states also have crime and corruption commissions but there’s no evidence of them having ever had references from their executives to work on counter terrorism and counter intelligence. Every State’s police intelligence capability includes a counter terrorism function, they also have vast counter intelligence holdings, a legacy from the pre 1977 Australian intelligence regime where counter intelligence enforcement was a State responsibility. Each State and Territory Corrections department also has an intelligence unit.

The National Intelligence Community, the Commonwealth’s statutory intelligence capability, consists of ten (10!) agencies. In order of which ones you’ve probably heard of they are - the Australian Federal Police, the Australian Security and Intelligence Organisation, Department of Home Affairs, Australian Secret Intelligence Service, Australian Signals Directorate, Australian Criminal Intelligence Commission, Defence Intelligence Organisation, Australian Geospatial Intelligence Organisation, Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Office of National Intelligence (formally the Office of National Assessments).

Then there are the Australian Intelligence Corps (Army Intelligence), which exists on its own albeit theoretically answerable to DIO, and the Information Warfare Directorate which encompasses every service’s information warfare capabilities subordinate to (but practically adjacent due to them being commissioned officers) the DIO and DSD.

So this begs the question, who is responsible for catching domestic terrorists? Or specifically, who was responsible for catching the two domestic terrorists who carried out the Bondi attack?

The answer is - none of the above. Or bits of the above. Or all of the above. Actual intelligence gathering and enforcement for counter terrorism activities is performed by Joint Counter Terrorism Teams. These are put together, on a case by case basis, by the AFP, ASIO and the relevant State Police force. These become a fixture of Australian counter terrorism only in the last 2-3 years. Theoretically, ASIO can gather intelligence, arrest and detain and question a suspect all on their own. But here’s a weird thing. They haven’t used their Special Powers since 2010, and in the 4 years prior, used them just once. No one really knows, since the Australian Intelligence Community isn’t known for gazetting its failures, but there’s an assumption that there are problems with the legality of their powers, and the potential for them to be challenged, likely arising from the “wrongful arrest” case of Dr Mohammed Hanef (it’s all but certain ASIO’s one use of their questioning and detention power in the last 2 decades was the Hanef case).

Of the 29 intelligence agencies in Australia only the State police forces, the Crime Commissions, the AFP and AUSTRAC can issue enforceable warrants. I guess technically the States Correctional Services intelligence bureaus can arrest someone but they’re already in custody so it’s not the same. Ironically, while AUSTRAC can’t issue arrest warrants, their enforcement undertakings are the most powerful since they can just take all your money, which is a very handy power to have when you’re dealing with trans national terrorism.

Speaking of power, here’s an even harder quiz night question - which is Australia’s most powerful intelligence agency?

Is it ASIO, with their detention warrants they never use, ASIS, with their limited immunity from obeying foreign laws that doesn’t let them actually kill anyone? The AFP, who are just cops with ANU degrees? The DSD at Pine Gap reading everyone’s emails?

Frame it like this, imagine an alternative universe where in 2019, when Sajid and Naveed Akram first blipped on ASIO’s radar, instead of saying “wait and see”, they said, “get these guys off the streets and find out everything there is to know about what they’re up to”, which agency could do that the fastest, the most effectively and importantly for spies the most secretly?

The answer is - the NSW Crime Commission.

It might be called the “crime” commission, but theoretically, it can do anything. And it has. The Crime Commission has the powers of a standing Royal Commission but can receive references for activities from the Government of the day or its own Management Committee, which includes the Commissioner of the AFP. The NSW Crime Commissioner can issue arrest and surveillance warrants, second officers from the NSW Police Force (and the AFP by agreement), it has its own technical division, but most importantly, it has inquisitorial powers AND - its own asset forfeiture powers. In the State of NSW, it can do everything ASIO, AFP, ASD and AUSTRAC do, under one leaky roof on Kent Street (they complain about the roof a lot).

The Crime Commission can show up in the middle of the night, arrest someone, take them to Kent Street’s hearing room, and compel them to answer questions. They don’t have to waterboard anyone to do that, because under the Crime Commission Act, the Commissioner can simply charge you with the offense of non-cooperation and put you in a remand cell pending trial in a closed hearing. The penalty is 5 years imprisonment. Organised criminals tend to roll over in the Commission pretty quickly, since that’s not even the worst thing they can do, that would be taking all your money. Funding the Crime Commission was always a punish for successive NSW Governments, the NSW Police didn’t like that there was a cooler, more secretive law enforcement agency in the State run by lawyers not cops and answerable directly to the Premier and Cabinet, not the Commissioner, so between 2013 and 2014 the then NSW Government simply gave the Commissioner the power to loot the treasuries of criminals instead of taxpayers. Next time you see a man of middle eastern extraction on a jet ski buzzing around the Central Coast consider there’s a very good chance it was either purchased at a Police auction, or will very soon be up for sale.

Asset forfeiture doesn’t mean much to terrorists, but being secretly imprisoned for 5 years certainly does.

To understand how NSW ended up with these extraordinary law enforcement powers, you have to understand the history of Australian intelligence and law enforcement.

Between 1949 and 1978, there were far fewer intelligence agencies. ASIO had just been created in ‘49, ASIS was formed in 1952 but was unacknowledged until 1989, the ASD was quasi acknowledged, the Federal Police didn’t exist (the Commonwealth Police had no counter terror or counter intelligence function until 1978). Each State had a “special branch” of their Police Force responsible for counter intelligence, counter terrorism, and just generally annoying any Trotskyites and Fenians who popped their heads up. ASIO’s core mission was the interdiction of Soviet spies. The Australian intelligence community at that time was run by the same character of people who ran it during the Second World War and things went okay. The key books to read about this period are David Horner, John Blaxland and Rhys Crawley’s Official Histories of ASIO, Brian Toohey and William Pinwill’s Oyster: The Story of the Australian Secret Intelligence Service (good luck getting a copy for under $500), Peter Edwards biography of Justice Robert Hope, John Blaxland’s unofficial follow up on the history of the ASD, Revealing Secrets. These are at least objective and factual, for less objective perspectives I recommend Secret by Brian Toohey and David Marr and Marion Wilkinson’s Dark Victory which contains a lot of unverified material on Australian intelligence during the Howard era Pacific solution.

The Hilton Bombing revealed deep cracks in the way intelligence services were administered, and the relationships between them, coming off the back of the Hope Royal Commission into intelligence that, as would be revealed years later, had found grave issues with governance and information sharing. It also spurned numerous conspiracy theories, and bookends what was either Australian intelligence’s wild years or a golden age depending on who you ask.

At the core of all of this is the question of what is Australian intelligence meant to do?

Some of this can be answered in this 1989 opinion piece from former ASIO chief Peter Barbour in the Australian Financial Review, reflecting on the controversial publication of Oyster into the history of ASIS. It’s worth reading, especially if you can’t afford the eye watering price of Oyster. (I don’t believe a lot of Australian intelligence conspiracy theories, but I absolutely believe ASIS tracked down every copy of that book and burnt it). Barbour writes:

Australia’s intelligence organisations were created in the early 1950s at a time of concern about Australia’s international situation and its perception of the threat or potential threat to our national security. The public expected intelligence work to be secret and its functionaries accepted a duty to keep matters secret.

(There was also a strong nationalist reason not mentioned in Oyster. By setting up its own intelligence agencies Australia laid claim to operations in its own area of responsibility and foreign agencies such as the CIA and SIS were obliged to respect this.)

Australian intelligence was not built up over decades out of some pressing security concern but rather, to occupy our sphere of influence. The CIA and SIS (better known as the UK’s MI6) were active in Australia, and although primarily protecting their own countries interests, our interests were shared, especially when it came to interdicting the rise of Communism and early terror threats.

The threat of terrorism in the 70s and 80s, the fall of Berlin Wall, the rise of asymmetrical threats and information warfare, shifted the priorities for these placeholder agencies whose main role in Australian bureaucracy was merely to exist so we looked like a real country on paper.

One of the most fascinating insights into how Australia’s intelligence agencies functioned came out last year in the unredacted John F Kennedy Assassination files where it was revealed ASIO steadfastly refused to grant permission for even the most benign references to Australian intelligence holdings to be released. Across the breadth of history of Australian intelligence there’s a perception, a sensation, that their principle business was not secrets - but being secret.

As a result its clear that by the late 1970s and early 80s they were not fit for purpose, in particular, ASIO, although ASIS had problems of its own. For much of its history ASIS wasn’t really Australia’s foreign intelligence service, but rather a special unit of British intelligence conducting operations they couldn’t, at least according to several 1990s whistle blowers who accused them of cavorting around the world, to Egypt, Kuwait, Chile, Malaysia and bugging MPs and plotting to blow up diplomats at the behest of MI6. The ABC Four Corners report into “Codename Mantra” that included those allegations is, like copies of Oyster under $500, impossible to find, but the Special Commission of Inquiry it triggered is not.

The unspoken inference in all the Royal and Special and sundry commissions triggered by scandals and leaks about Australian intelligence is they had too much power. Which is a very Australian cultural conundrum. Globally, intelligence agencies tend to have great and extraordinary powers and systems for staffing themselves with people responsible for using them. But Australia is the country of tall poppy syndrome and toxic egalitarianism. The American’s Central Intelligence regime is predicated on unspoken elitism, the idea that extraordinary powers require extraordinary people, and so in its infancy, the US Intelligence community spent a lot of time spreading its DNA through institutions from which to draw its personnel. US intelligence and the Ivy League are symbiotic. When the character of US universities diminished, US intelligence changed universities. Today, a CIA officer is more likely to be a Mormon from the University of Utah than a Georgetown or Princeton WASP.

At the dawn of the Cold War Australia had all the ingredients for a very capable intelligence regime. A legacy of experienced intelligence operatives from the Second World War and conservative sandstone universities. But that wouldn’t last. The old guard died out, and the universities became hotbeds of political radicalism, degeneracy and ineptitude. Today, ASIO, ASIS and the whole alphabet soup simply advertise online, instead of recruiting good candidates directly.

By 9/11, Australian intelligence isn’t so much a regime, a power structure, it’s a bureaucracy. A system for producing pieces of paper and a process for deciding who can read them. But no one is put in charge of doing anything about them. And the history of Australian intelligence at that point is a series of regulatory and statutory limitations on what exactly can be done.

Consider for example the botched 1985 “training drill” by ASIS at Melbourne’s Sheraton Hotel (lot of hotel related drama in Australian intelligence). Bob Hawke took their guns away after that. They’d get them back, in 2004, maybe, it’s unclear. But this is indicative of the slow erosion of any kind of functional power for intelligence as a whole.

The problem is, you can have the best intelligence gathering regime in the world, but to keep people safe, to keep your country sovereign, at some point, you have to do something with it.

And in Australia, the only agencies with the power, and for much of our history the will to do anything, were and are Police. But contemporaneously with the various inquiries into the powers and responsibilities of intelligence agencies, Australian police had their own problems.

The Australian Federal Police was set up in 1978 with the merger of the Commonwealth Police and the ACT Police specifically to investigate terrorism. From the outset, no one liked them. No one liked the Federal Narcotics Bureau that preceded them either. Because since the days of red coats and rum in the colonies Australian State police forces had come to wield incredible, awe inspiring power. The 1890s Constitutional Conventions might have found a consensus on the Commonwealth amongst the Australian public and civil society but no one asked the Police’s permission. A fact a century of Police Commissioners never let anyone forget.

Within weeks of the Australian Federal Police Act 1979 hitting the statute books, it became clear there was not going to be much in the way of cooperation from the States, who had their own secret police, tasked with cracking the skulls of anyone who looked sideways at a hammer and sickle (if they felt like). It was also clear, during the post détente warming with the Soviet Union, that ASIO, along with Police Special Branches, had taken the boot off the throat of various socialist malcontents in Australian public life (to the extent they weren’t already in them). And they were getting powerful. So powerful, then Prime Minister Malcolm Fraser triggered the Costigan Royal Commission, also known as the Royal Commission into the Activities of the Federated Ship Painters and Dockers Union. Costigan would crack the spine on an encyclopaedia of corruption and criminality in Australia’s union movement that traced its DNA all the way back to the 1900s. All happening under the noses of Australia’s State and Federal intelligence regimes too busy playing James Bond to notice that Peaky Blinders had been playing out to its conclusion on waterfronts and all the way into boardrooms for a century.

To safeguard a country against perfidious influences takes a certain type of person. These people can’t be created, you can teach skillsets as required, acquire expertise, you can pay people if all else fails, but at the heart of things, you need people possessed of the nexus of desire and ability to stand sentinel, and ask nothing in return. The US Intelligence regime realised this, which is why they were run by the US elite. Australia’s intelligence regime didn’t, and assumed, wrongly, they could be run by middle class bureaucrats or working class police and get the same result. But it can’t. In 1980, the Australian Government stumbled upon the class of people who could do the job without prejudice all by accident. It wasn’t spies or cops or journalists who could do the job. It was lawyers. Australian lawyers had the skillset required, had their political identities forged in the last remaining conservative institutions alive, and importantly - they were very hard to corrupt. It’s easy to buy off a cop who earns $30 an hour. It’s a lot harder to buy of a senior counsel who bills $3000 an hour.

And as part of this process, the Government discovered something else. There is a much more elegant way to police the sharpest tip of criminality, and learn the most unknowable secrets, and it doesn’t require a gun or a listening device, or a telephone in your shoe - it just needs a courtroom.

By the time Costigan wrapped up his work and the newspapers were full of largely unsubstantiated allegations that broke up decades old grafts the Commonwealth was setting to work creating the National Crime Authority, effectively a standing Royal Commission with a ongoing reference to investigate high level organised crime. It would pick up the slack left behind when in the wake of the Hope Royal Commission, it was kindly suggested to State police forces they may not need to have their own internal intelligence bureaus working at best, in silos from federal ones and at worst, at cross purposes - and at the very worst, being corrupt.

This process would come to a head in 1995 with the creation of the Wood Royal Commission also known as the Royal Commission into the New South Wales Police Service which would find “systemic and entrenched” corruption inside the NSW Police Force that would take another decade to fully eradicate. This was the nail in the coffin for State police discrete involvement in counter intelligence and terrorism in particular. The National Crime Authority played a key role in investigating the links between corrupt police, trans national organised crime, and its links to foreign governments.

The challenge for the Governments was, if you can’t trust Police, who can you trust? Post Costigan, the NSW Government had established the State Drug Crime Commission, modelled on the National Crime Authority, with a specific reference to deploy standing Royal Commission powers to investigate drug crime. They did a very good job too, and became the bane of high level drug importation for many years, but there were limits to their power. They wouldn’t get asset forfeiture laws until the early 1990s, and in 1994, a year before Wood kicked off, a National Crime Authority investigator was killed in a targeted assassination by the Perre family, a South Australian drug cartel. Remember, these guys weren’t cops, they didn’t carry guns, they carried warrants and briefs of evidence. This had a cooling effect on Commission activities everywhere, and would trigger waves of reform to very quietly, make state and federal Crime Commissions the most powerful legal entities in the country.

That’s not to say it went perfectly smoothly. The NSW Crime Commission would have its own corruption crisis soon after, with the arrest of Mark Standen, a NSW Crime Commission official who was also a major importer of precursor drugs from the Netherlands. This would trigger a series of recriminations inside the NSW Police, cost multiple careers and to this day, you still see former Deputy Police Commissioners opining about how unfair the whole thing was. But you know what survived that episode? The Crime Commission itself. With, get this, even more powers. Because what the Government realised at the time is that ironically, the only agency capable of catching Standen, was the very agency he worked for. And it did, a lot quicker than the Police have ever caught one of their own.

Post Bondi, Australia’s political class are gripped with this, largely confected in my opinion, question of a Royal Commission.

But Australia already has Commissions capable of doing everything the nameplate agencies failed to do. Even after the findings of both Hope Royal Commissions and a Special Commission of Inquiry into intelligence, the Commonwealth does not have a monopoly on counter terrorism. It simply has an understanding. There is nothing stopping NSW Premier Chris Minns and Police Minister Yasmin Cately from convening a meeting with Crime Commissioner Peter Cotter and making a reference to investigate every Radical Muslim with a gun license or a chemistry set.

It’s an issue of will, and a paralysis that has set in where no one wants to be responsible for issuing an order anymore. In 2013 the NSW Government actually changed the law so the Police Minister no longer sat on the board of the Crime Commission because then Premier Barry O’Farrell was deeply uncomfortable at that level of responsibility for such a powerful agency being invested at a Cabinet level. As people reflect on why ASIS, Australia’s supposed foreign intelligence agency seemingly had no idea two ISIS radicals were cavorting around noted extremist hotbed the Philippines, it’s worth noting that since 2014 at least, ASIS have had no responsibility for counter terrorism. Their core objective is foreign intelligence, on state actors, and their role in counter terrorism is only via direct Ministerial reference as per section 3 of their charter. The last times a Foreign Affairs Minister did that it has ended badly, with long running court cases into phone tapping East Timor, to say nothing of ASIS’ adjacency to the Brereton Inquiry into war crimes.

As Barbour said in 1989, Australia’s intelligence functionaries accepted a responsibility to keep matters secret, and there seems little interest in Australia’s political and civic classes from a job that will never require them to hold a press conference. In fact, a job, where a press conference should be considered a failure condition.

The National Crime Authority would morph into the National Crime Commission which would be dissolved and is now the Australian Criminal Intelligence Commission - with no Commissioner. They can no longer issue warrants or subpoenas.

Instead of a political Royal Commission into “antisemitism” and various, obvious intelligence failures, Australia needs a Counter Terrorism and Counter Intelligence Commission. The ACTCIC. It’s a mouthful, probably needs to be workshopped, but you get the idea. We’ve tried sequestering counter intelligence and counter terrorism responsibilities into institutionally secretive bureaucracies - we should try and convene a Star Chamber instead.

The significant addition such a new agency would need is kineticism, which previous Crime Commissions have only had to a limited degree. And it just so happens, we have such a capability ready and raring to go.

Hidden away on the Australian Defence Force website is this bland reference to Operation Augury. What is Operation Augury? Would you believe, it is one of Australia’s only existing black operations. Every dollar in the Commonwealth is accounted for, even the dumbest dollars. We know exactly how many Pride Month rainbow flags, dot paintings and NDIS providers the Australian Government funds every year. We even know exactly how much the most secretive agencies spend every year as part of the Budget quantum, which is how I was able to post this amusing anecdote about how little money ASIS are spending. Annual defence expenditure on discrete operations is itemised each year under codenames. “Okra’ for the Middle East. “Manitou” for the Navy in the Arabian Gulf. Afghanistan was “Highroad”. Starting in 2016 “Augury” was added to the Budget, with a modest $40 million, to deploy 80 1RAR operators to, wait for it - the Philippines. Yes, the Philippines, that country where the Akrams travelled mysteriously for a month before their attack on Bondi.

This was met with great fanfare by the then Government under Malcolm Turnbull. It was nation building it was regional muscle flexing. The Filipinos had a problem and we were helping to fix it. Within a year the mission had expanded to include air assets. And then in 2017, the head of ASIS Nick Warner travelled to meet the big dog President Rodrigo Duterte himself. Then, according to anonymous Defence sources talking the ABC in 2018 things went “dark”. Figuratively and literally, since for the first time, a Defence budget line item would be blacked out on the budget papers, which we didn’t even do for the construction of Pine Gap.

Augury has, according to various Defence sources, gone global, operating in Afghanistan, Jordan and the United Arab Emirates. Officially, it comprises 42 personnel. It’s like something out of a Call of Duty game. And it’s just sitting there, passively existing in the bloated milieu of Australian intelligence assets waiting for someone to tell it to go shoot some terrorists.

I’d suggest instead of wasting time on Royal Commission to tell us why no one did anything, we should simply have a Royal Commission do something - and one could start by directing the activities of Australia’s actual existing top secret counter terrorism task force.

Which gets to the bottom of the Australian intelligence iceberg - who does pull the trigger? Who is in charge? Who directs all this? Who is responsible?

Theoretically, based on the current statutory framework, it’s anyone from the Foreign Minister to the Prime Minister himself. Which is likely why no one wants us looking too deeply into the matter. But all this could be circumvented if we simply appointed a ruddy faced chap with an LLB and a penchant for expensive wines to the job. It won’t be cheap, and they’ll be annoying, and they’ll expect an OAM and an eye wateringly large expense account, but it’s a lot better than whatever it is we have now.