Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 113-128
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors.
William O. Douglas, 1898-1980
Justice of the Supreme
Court of the United States
To be afraid of ideas, any idea, is to be unfit for self-government.
Alexander Meiklejohn, 1872-1964
American Educator and Legal Philosopher
Citizens of South Australia have been known to take pride in the fact that theirs is the only state in the Australian federation which did not originate as a penal colony. Unlike their counterparts in the east, the people of Adelaide have a reputation for civility and tolerance. The reputation is not entirely deserved, however, as some aspects of life in the City of Churches have had more sinister overtones.
Involvement of South Australian Police in political surveillance dates to the First World War. Three officers were seconded to Military Intelligence to infiltrate the German immigrant community of Melbourne. In the immediate postwar years, detectives were assigned to monitor trade union activity in mining communities and to report on political speakers in Adelaide's Botanic Gardens (Cain 1983, p. 143 and pp. 178-82).
In 1939, following discussions with other state police forces and the Department of Defence, the South Australian Police Department set up an 'intelligence branch'. The purpose of the new branch was to identify persons of 'potential enemy nationality' or 'Members of hostile Associations who might obstruct the National War Effort.' (Huie 1967, p. 80).
The Intelligence Branch ceased to exist in 1945 when the war ended and when responsibilities for alien registration were assumed by the Australian Department of Immigration. In 1947, the Commissioner of Police established a 'Subversive Section' to collect and record information on persons engaged in or suspected of 'subversive' activities. The primary attentions of the section were devoted to members of the Communist Party of Australia.
Similar sections existed in the police departments of other states and at a 1949 conference of police commissioners, it was agreed that each be known as 'Special Branch'. The South Australian Special Branch thus began its institutional life. It was not a large Organisation; in 1977 it consisted of only five officers. Special Branch officers kept a low profile in the bowels of police headquarters. Assignment to the branch was not regarded as particularly prestigious; those officers with ambitions of rising to the rank of inspector and above would have been well advised to avoid a Special Branch posting.
What Special Branch did was collect information about various individuals and groups in South Australia. Whilst their guidelines were not explicit, Special Branch officers were concerned with Communist and related organisations, and other activities which they regarded as extremist or subversive. Although it relied primarily on newspaper accounts, Special Branch also received information from police in the course of normal duties, and engaged agents who infiltrated target groups and reported back to Special Branch. Special Branch was the primary point of liaison between the South Australian Police and ASIO, the federal government's counter intelligence Organisation.
By 1977, the amount of information which Special Branch had amassed was considerable. It held about 3,000 separate dossiers and over 40,000 index cards. Individual persons were the subject of some 28,500 cards. Aside from the existence and scope of such a surveillance system, its most significant characteristic was its political bias. There were extensive files on Labor Party parliamentarians including some evidence that, from time to time, they were under physical surveillance at public meetings. All but two of the state and federal Labor parliamentarians were in Special Branch files; the proportion of Liberal parliamentarians who were the subject of files was much less than half.
Files were kept on the leaders of the trade union movement and on individual unions. There were cards on judges, magistrates, and at least one former governor of South Australia. Even religious leaders were under surveillance:
Clergymen of the main denominations 'come under notice' and were indexed. Some have special files. Most, if not all, of the activity was peaceful and non-subversive. Even prayer meetings for peace were watched and recorded (South Australia 1977, p. 12).
The Council for Civil Liberties and its members, never among the most favoured citizens of South Australia in the eyes of the police, were all on file.
Long before the Council was formed, the public utterances of many prominent persons who advocated any form of civil rights or liberties were indexed (South Australia 1977, p. 13).
Other causes whose exponents had aroused sufficient suspicion within Special Branch to warrant systematic attention included women's liberation, the anti-apartheid movement, and a group favouring reform of South Australia's divorce laws. Materials on conservatives and their causes, not to mention right-wing extremists, was relatively rare.
Among the most fundamental values of a liberal society are freedom of expression and freedom of association. The uninhibited exchange of ideas is a hallmark of democratic political life. Thought and discussion of public issues may be suppressed explicitly, through censorship or outright prohibitions of public assembly. But the exercise of democratic political freedom may also be inhibited more subtly. The mere possibility that one's movements and utterances are or might become the subject of police attention may suffice to discourage a person from exercising his or her rights and responsibilities as the citizen of a democratic society.
A healthy democracy requires that the expression of contending viewpoints be encouraged. But under a system of state surveillance the costs of dissenting may be such that some citizens will exclude themselves from public life. The uncertainty over whether or not one is under surveillance may erode the sense of self and sense of autonomy which are requisites of active citizenship. In a society where surveillance is undertaken on any significant scale, a climate of suspicion is created. Trust, a central element of the social fabric, is weakened.
Clandestine surveillance and records thereof pose other threats as well. Malicious accusation or merely erroneous recording practices may result in false information being kept on a person. Secret files and their keepers are not accountable; they are not accessible to their subjects for review and possible correction.
In South Australia, these risks were not merely hypothetical. In the words of the judge who first reviewed the Special Branch files:
Material which I know to be inaccurate, and sometimes scandalously inaccurate, appears in some dossiers and on some cards. Some of this information appears to have been used in 'vetting' procedures (South Australia, 1977, p. 7). 1 have seen a number of cards where information, patently false to my own knowledge, has been used to the attempted disadvantage of certain persons (South Australia 1977, p. 55).
A familiar refrain of police commissioners past and present is their professed chronic shortage of personnel. Moreover, one of the more onerous aspects of the policeman's lot is paperwork.
Small irony, then, that not inconsiderable resources were devoted to political surveillance and the maintenance of records arising therefrom. The costs in question were not merely those relating to the five officers serving in Special Branch. Indeed, it appears they relied for their intelligence material on many of their brethren on patrol. A portion of the material was based on physical surveillance by informers and notes of meetings:
From 1953-1954 onwards the ordinary police (at the request of Special Branch on behalf of ASIO) gave reports on persons buying 'The Tribune' in suburbs and towns from one end of the State to the other. Police also kept watch on all meetings of communists at factory gates, at street corners and near polling booths. Police were also attending various meetings in industrial country towns where communists were expected to show up but did not. Reports on these meetings resulted in many innocent persons being watched and being clumsily and adversely reported upon (South Australia 1977, p. 55).
There seems little doubt that the difficulties involving the South Australian Special Branch arose from lack of proper supervision by senior officers in the Department. The unit was small and kept a low profile, to say the least. Organisationally, it was attached to the Criminal Investigation Branch. For those heading the CIB, faced with a regular supply of unsolved crimes to investigate, suspects to apprehend, and cases to prepare for prosecution, it was convenient to ignore Special Branch. Indeed, the senior officers of CIB traditionally left Special Branch and its affairs to the Commissioner of Police personally. In turn, Commissioners were inclined to allow the Sergeant in charge of Special Branch to manage its affairs without supervision:
The Commissioner and Assistant Commissioner both said that they had never made a physical search of the large quantity of files and cards, that they rarely even visited Special Branch and that they relied upon information supplied by staff (South Australia 1977, p. 67).
This excessive degree of delegation was to prove more than embarrassing. Lack of supervision by senior police was one matter. Lack of accountability was another:
Identification Of the enemies of the states is one of the highest functions of responsible government and should not be delegated, without ministerial supervision, to a police or other force (South Australia 1977, p. 61).
But ministerial supervision was not easy to achieve. As it happened, the South Australian Police concealed the extent of political surveillance in which its officers were engaged on at least three different occasions between 1970 and 1977. The circumstances were to culminate in the dismissal of a police commissioner.
Australia's constitutional arrangements placed the activities of state police special branches beyond the purview of the federal minister responsible for ASIO (the Attorney-General of Australia). At the same time, neither Special Branch officers nor the Commissioner of Police at the time considered themselves to be responsible to the state government on many matters under Special Branch purview. In the words of the then Commissioner of Police, Harold Sainsbury:
As I see it the duty of the police is solely to the law. It is to the Crown and not to any politically elected government or to any politician or to anyone else for that matter (quoted in South Australia 1978, P. 19).
Events proved this contention to be both politically unwise and legally incorrect. Indeed, the constitutional status of the South Australian police had only recently been formalised, in the aftermath of a royal commission arising from anti-war protests in the early 1970s (Waller 1980).
The initial criteria by which individuals and activities were selected for attention by Special Branch were themselves vague. ASIO, itself an Organisation with no dearth of problems (Australia, 1977) provided inadequate guidelines and training to special branches. There was no in-house training in the South Australian Special Branch beyond that flowing from day-to-day routine. As years wore on, Special Branch activities acquired a momentum of their own, as did those of the Vice Squad*, reflecting adversely on the managerial competence of successive South Australian police commissioners.
Once embarked on a course, bureaucracies, even bureaucracies as small as Special Branch, develop the impulse to perpetuate and justify their existence. Where tangible threats to national security no longer exist, less tangible threats may be perceived (or even invented). Stated another more general way, bureaucracies will find work to occupy their energies, even where none may naturally exist.
In other respects, however, the Special Branch was less adaptable. The inherent conservatism and insularity of police in general was perhaps even greater within Special Branch than in the rest of the Department. In any event, the sweeping scope of Special Branch records revealed an inability, if not an unwillingness, to distinguish between dissent and subversion. It was also suggested that the excessive zeal of Special Branch may have arisen in part from American cultural imperialism. Few Australians experienced at first hand the chilling years of the McCarthy era in the United States when careers and even lives were ruined by the mere suggestion of leftist sympathies. But then, as now, the American interpretation of reality is often embraced uncritically by Australian authorities:
We have imported many ideas and practices from the United States, usually in a diluted form and usually late enough to avoid what have been discovered to be their worst features. Practices relating to security measures to counter subversion are no exception. I found that most of the FBI's ideas about 'subversion' security risks and information gathering have percolated down to Special Branch, no doubt through ASIO training and influence (Australia 1977, p. 38).
Ironically, some of the more constructive aspects of American institutions had been ignored. By the late 1970s the FBI had developed written guidelines regarding the investigation of domestic security cases:
Under no circumstances is an investigation (to be) conducted of an individual on the basis that such individual supports unpopular causes or opposes government policies (quoted in South Australia 1977, p. 39).
Public awareness of Special Branch and its activities grew very slowly. In October 1970 the South Australian state council of the Australian Labor Party (ALP) called upon the government to state whether such a branch existed, and whether it undertook surveillance of trade unions and political parties. In a telephone inquiry to Commissioner Salisbury, the Premier, Don Dunstan, was advised that Special Branch did exist, but that it was a small operation concerned with information relating to politically motivated violence.
In mid-1975, the South Australian government was approached by Mr Justice Hope, who at the time held a Royal Commission to enquire into Australia's security and intelligence activities. On behalf of the Royal Commissioner, the South Australian Premier's Department requested an outline of Special Branch activities. An outline was provided on 30 June 1975 and was subsequently found to be inadequate by the Royal Commissioner. Additional information was requested in August and September. The Police Commissioner's response again omitted reference to surveillance of political and trade union activities.
In May 1976 the state council of the ALP and one of the party sub-branches made inquiries of the Chief Secretary (the South Australian minister responsible for police) regarding Special Branch activities in general. The Deputy Commissioner of Police replied in general terms that:
the Special Branch specializes in subversive activities that could lead to crimes against the State (quoted in South Australia 1978, p. 79).
This vague response was then communicated to the Acting State Secretary of the ALP.
Over a year later, in September 1977, the Adelaide Bureau Chief of The Australian newspaper submitted a list of questions to the Premier's office regarding political surveillance and dossiers on unconvicted people. Before a response was forthcoming, the journalist, Peter Ward, who had formerly been an executive assistant to Premier Dunstan, published an article headed 'Exposed . . . the Secret Police Dossiers on Demonstrations' (Terry & Ward 1977).
The article implied that the Premier had been reluctant to act on the existence of secret police. When no response was forthcoming to Ward, he brought his article to the attention of Mr Robin Millhouse, M.P., the lone Australian Democrat member of the South Australian House of Assembly.
Millhouse placed his own questions on notice. The reply given on 1 November 1977 revealed that the police did keep records on persons who had not been charged or convicted of crime, but was otherwise vague. There followed another article in The Australian which criticised Dunstan's alleged failure 'to ensure that such surveillance of political dissenters and political terrorists as is necessary is conducted under the right kind of supervision, with the correct degree of care' (Ward 1977).
Such pressure from press and Parliament moved the government to act quickly. State Cabinet met in the absence of Premier Dunstan, who was overseas, and decided to hold a judicial inquiry into Special Branch.
The inquiry was conducted by Mr Acting Justice J.M. White of the South Australian Supreme Court. His terms of reference actually specified the criteria by which information should thereafter be retained on file:
No records, or other material, shall be kept by the Police Commissioner, or any person under his control as Commissioner, with respect to any person unless:
- That record or material, either alone or with other existing records or material, contains matters which give rise to a reasonable suspicion that that person, or some other person, has committed an offence, or
- That record or material, either alone or with other existing records or material, contains matters which formed the whole or part of the facts with respect to which that person has been charged with an offence in respect of which proceedings have not been dismissed or withdrawn, or
- That record or material, either alone or with other existing records or material, contains matters which give rise to a reasonable suspicion that that person may do any act or thing which would overthrow, or tend to overthrow, by force or violence, the established Government of South Australia or of the Commonwealth of Australia, or may commit or incite the commission of acts of violence against any person or persons (quoted in South Australia 1977, p. 57).
The terms also enabled Mr Acting Justice White to require the Commissioner of Police to examine records to ensure compliance with the above criteria, and to certify formally that they were in fact in compliance. The judge was further empowered to conduct random checks to ensure the accuracy of the Commissioner's certification, and to report annually to the government on continued compliance.
The White Report was submitted to the Premier on 21 December 1977. As indicated by the extracts cited above, it was extremely critical of Special Branch, its activities, and its management. The Report concluded that a 'great mass of irrelevant material (often potentially harmful, sometimes actually harmful) has accumulated' (South Australia 1977, p. 71).
Moreover, the Report noted that the Commissioner of Police had failed to inform the government fully about the existence of sensitive files on matters relating to politics, trade unions and other affairs.
When Dunstan confronted Salisbury with the White Report, he expressed his extreme displeasure and concluded that Salisbury had misled him and that he in turn had misled the public. Salisbury conceded that some of his answers 'may have been pulled a little' (Cockburn 1979, p. 2t) but maintained that the White Report was an over-reaction to the situation.
When Dunstan expressed the intention of publishing the Report, Salisbury expressed alarm and suggested that the effect would be 'volcanic' (Cockburn 1979, p. 21).
On 16 January 1978 Cabinet decided that the White Report be published immediately, that the Premier ask for the Police Commissioner's resignation, and that if this was not forthcoming the Commissioner should be dismissed from office. Salisbury refused to yield, and the notice of dismissal was delivered to him on 17 January.
The matter was far from concluded, however. Salisbury was a popular man, both within the police department and among Adelaide's conservative establishment. The Liberal Opposition questioned the rigour of the White Report and the legality of the dismissal. Liberal members reaffirmed their faith in Salisbury's integrity and hinted that the government had something to hide.
The Premier continued to reaffirm the principles of responsible government and argued that he had clearly been misled by the former Commissioner of Police.
The Opposition, which controlled the state's upper house, was inclined to convene a select committee of inquiry. The government acted instead, and appointed a Royal Commission on 10 February 1978. At the end of May, the Royal Commissioner, Justice Roma Mitchell of the South Australian Supreme Court, presented her report.
In firmly dismissing the former Commissioner's contention that he owed a duty to the Crown and not to any elected government, Justice Mitchell said:
That statement..... suggests an absence of understanding of the constitutional system of South Australia or, for that matter, of the United Kingdom (South Australia 1978, p. 19).
She concluded that the former police commissioner had indeed misled the government, that the government's decision to dismiss him was indeed justifiable in the circumstances. Justice Mitchell further concluded that the Police Regulation Act 1952 (SA) be amended to provide for explicit grounds for a Commissioner's dismissal by the Governor. She recommended against any parliamentary involvement in a Commissioner's removal from office.
In the immediate aftermath of the dismissal of the Police Commissioner, the Dunstan government issued a set of instructions pursuant to the Police Regulation Act. These sought clearly to limit the conditions under which Special Branch could collect and retain information to those circumstances involving security, narrowly defined. Specifically, they required that the information, either alone or with other existing materials, give rise to a reasonable suspicion that an offence relevant to security has been committed, that a person might commit or incite the commission to acts of violence, or that a person might act to overthrow the federal or state government. They provided for the review of Special Branch files under the supervision of Mr Acting Justice White, and for the destruction of those materials which did not conform to the newly specified criteria. In addition, the new instructions required that approval of the responsible state minister be obtained before any Special Branch information be disclosed, and that:
Special Branch shall cease recruiting, paying, servicing or otherwise acting as intermediary for agents of the Australian Security Intelligence Organisation or any other Organisation, and shall act in all respects only as a branch of the SA Police force... (South Australian Government Gazette, 18 January 1978, pp. 287-8).
Salisbury retired to England, with the $160,000 he would have earned had he served the remainder of his term as Commissioner. Premier Dunstan resigned from Parliament on grounds of ill-health in February 1979 and by the end of the year a Liberal government was in power in South Australia for the first time in nearly a decade. In November 1980 the Tonkin government replaced the 1978 instructions with a new set which removed the express requirement for ministerial approval before information from Special Branch Files could be disclosed. In addition, it relaxed constraints on discretionary decision-making by Special Branch officers and did not specify how incorrect, obsolete, or irrelevant data might be corrected or destroyed. New procedures for independent auditing of files failed to require specifically that the actual 'hands-on' audit be performed by the independent auditor; rather, the auditing task was limited to assurance that the responsible police officers had performed certain functions (South Australian Government Gazette, 20 November 1980, pp. 1926-7).
Another change was necessitated by the unwillingness of the state's Chief Justice to make a member of the judiciary available for the ongoing auditing of Special Branch files. Noting that Special Branch was a part of executive government and that its activities were very much the subject of partisan political controversy, the Chief Justice maintained that principles of separation of powers and judicial independence precluded ongoing judicial oversight of its operations. As alternative, the government appointed a retired Supreme Court judge, the Honourable David Hogarth, Q.C. as auditors
Labor returned to power in Adelaide in November 1982, and set about rectifying what were perceived to be inadequacies in the previous government's policy.
Appropriately, it chose the year 1984 in which to abolish Special Branch, replacing it with an Operations Intelligence Section. The nature of information which this new body could gather and record was defined precisely to exclude non-violent activity and peaceful dissent. The new regulations imposed strict conditions on the disclosure of information, and contained provisions to ensure that the new unit would remain accountable. The Police Commissioner is required to report to the responsible minister twice yearly regarding the unit's activities, and an auditor, independent of both the police and the public service, reports annually to the Governor. This role continued to be performed by Mr Hogarth Q.C.
Similar reorganisations had taken place following the abolition of special branches in Victoria and Western Australia. But elsewhere in Australia, governments have been reluctant to change the modus operandi of their security surveillance bodies. Little is known of the Queensland Special Branch. In New South Wales, however, Special Branch continues to be the subject of more scrutiny and criticism than it no doubt would prefer to receive (Molomby 1986).
*Dr George Duncan, Adelaide University law lecturer, drowned in the River Torrens in 1973. Years later former officers of the South Australian Vice Squad were charged with manslaughter over the incident. They were eventually acquitted.
- Australia 1977, Royal Commission on Intelligence and Security, Reports, (Royal Commissioner, Mr Justice Hope), Australian Government Publishing Service, Canberra.
- Cain, Frank 1983, The Origins of Political Surveillance in Australia, Angus & Robertson, Sydney.
- Cockburn, Stewart 1979, The Salisbury Affair, Sun Books, Melbourne.
- Huie, R. 1967, 'Functions of Special Branch' Internal Memorandum South Australian Police Department, Reprinted in South Australia 1977, Special Branch Security Records Premier's Department, Adelaide 1977, pp 78-86.
- Molomby, Tom 1986, Spies, Bombs and the Path of Bliss, Potoroo Press, Sydney.
- South Australia 1977, Special Branch Security Records: Initial Report, (Report of Mr Acting Justice J.M. White), Premier's Department, Adelaide.
- South Australia 1978, Royal Commission 1978: Report on the Dismissal of Harold Hubert Salisbury, (Royal Commissioner, Justice Roma Mitchell), Government Printer, Adelaide.
- South Australian Govemment Gazette 18 January 1978, pp. 287-8.
- ibid. 20 November 1980, pp. 1926-7.
- Terry, P. & Ward, P. 1977, 'Exposed... The Secret Police Dossiers on Demonstrations', The Australian, 3 September.
- Waller, Louis 1980, 'The Police, The Premier, and Parliament : Governmental Control of the Police', Monash Law Review, 6, 249-67.
- Ward, Peter 1977, 'Secret Police Files a Nettle for Dunstan to Grasp', The Australian, 3 November.