‘Judgment was sacrificed to ambition’: Malcolm Turnbull’s ASIO folly rightly reversed

The decision by Prime Minister Anthony Albanese to transfer responsibility for Australia’s domestic intelligence agency ASIO from the Department of Home Affairs to the Attorney-General’s Department, announced on Sunday with the changes to the ministry, may not be something that gets political commentators excited. Yet it was an important recalibration of our security architecture that will be greatly welcomed by national security professionals.

To see why it is important, it is necessary to understand the history. ASIO was a creation of the Chifley Labor government. It was the early days of the Cold War; the threat of Soviet espionage was real. Australia was seen as a weak link by Western allies, in part because of the absence of a domestic intelligence agency like Britain’s MI5.

ASIO is returning to the Attorney-General’s Department.Credit: Matt Davidson

The original document constituting ASIO – not an act of parliament or even an order in council, merely a letter from Chifley to ASIO’s first director-general Sir Geoffrey Reed – described it as “part of the Defence Forces of the Commonwealth”. The powerful mandarin who was secretary of the Defence Department, Sir Frederick Shedden, wanted it to be a Defence agency; others thought it should be in the prime minister’s portfolio.

While Chifley saw the need for such an agency, many in Labor were suspicious of creating what they saw as a domestic spy force. So it was decided that the new agency should be placed within the Attorney-General’s portfolio, then held by H V Evatt. The rationale was that, as the attorney-general was the minister responsible for protecting the rule of law, such a sensitive function was safest under his jurisdiction. In his official history of ASIO, Professor David Horner highlights the role of the then Commonwealth Crown Solicitor Harry Whitlam in securing that outcome.

That remained the position for the next 70 years. Ironically, the only time an attempt was made to remove ASIO from the responsibility of the attorney-general was by Harry Whitlam’s son, in November 1975. But a lot was going on just then, and the plan lapsed with the end of the Whitlam government.

Both of the Hope royal commissions during the 1970s and early 1980s – the most searching inquiries into ASIO ever conducted – accepted the power of the argument that jurisdiction over an agency whose activities are of necessity covert, should be with the minister and department responsible for protecting the rule of law. This view was shared by ASIO itself. When I was attorney-general, I found it to be very conscious that its effectiveness depended upon both being, and being seen by the public to be, an agency which did not over-reach its considerable powers.

With the election of the Abbott government in 2013, a concerted attempt began to unravel that position. Its author was Mike Pezzullo, then the secretary of the Department of Immigration and Border Protection and, at the time, one of the most powerful and feared bureaucrats in Canberra. Pezzullo’s dream was a super-department of Home Affairs, encompassing border protection, policing, intelligence and much else. Although Pezzullo and his minister Scott Morrison pushed hard, they failed to persuade Tony Abbott of the wisdom of the idea. It shows just how dangerous the proposal was that even Abbott – who yielded to no one in his hawkishness of national security – thought it was a bad idea.

When Malcolm Turnbull overthrew Abbott in 2015, Pezzullo saw his chance to relitigate the issue, enlisting his new minister Peter Dutton as his ally. The next two years saw, behind the scenes, a ruthless power struggle in which good public policy was thwarted by empire-building and megalomania. Public service codes of conduct were violated, judgment was sacrificed to ambition, and the warnings of Australia’s most senior national security professionals were wilfully disregarded.

In particular, the leaders of the government’s two most important domestic security agencies – Duncan Lewis, the director-general of ASIO and Andrew Colvin, the commissioner of the Australian Federal Police – advised against Pezzullo’s plan. Lewis was vehement in his opposition; he later told me that he had implored Turnbull not to do this.

Nevertheless, Turnbull went along with the idea, thus making the error which Abbott had avoided. This was a time at which Turnbull laboured under the belief that, if he accommodated the wishes of the right wing of the Liberal Party, they would not threaten his leadership. Whether this was a Faustian bargain, Panglossian optimism, or just political naivete, we all know how it ended.

Dutton – never a big fan of lawyers, or abstractions like the rule of law – was naturally eager to take the helm of a powerful new department. For Pezzullo – the man who decided to dress his officers in black shirts (just to make sure everyone got the message), and espoused an unapologetically Hobbesian view of the unlimited nature of state power – such considerations were lawyers’ gobbledegook.

Last year, when this masthead published hundreds of text messages Pezzullo sent to a Liberal Party backroom operative, the full extent of his contempt for the rule of law was exposed. The Attorney-General’s Department had, he said, to be “put to the sword”.

After those disclosures, Pezzullo was unceremoniously dismissed, after an inquiry by the respected former national security mandarin Dennis Richardson found that he had breached the Australian Public Service Code of Conduct on numerous occasions.

The Department of Home Affairs – the Frankenstein’s monster he created – lives on. However, wisely, the Albanese government has now restored responsibility for its two key domestic agencies – ASIO and the AFP – to the Attorney-General’s Department where – as almost every prime minister since Ben Chifley has understood – they belong.

George Brandis is a former high commissioner to the UK, and a former Liberal senator and federal attorney-general. He is now a professor at ANU.

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