Finance and Public Administration Committee Monday 23 May 2011
CHAIR: As there are no further questions on that, we will go back now to 1.2, National security and international policy.
Senator LUDLAM: I am wondering whether this is an appropriate place to ask about WikiLeaks and the direction, I suppose, of the Prime Minister specifically.
Mr Lewis : Yes, Senator.
Senator LUDLAM: I am interested to know when the department first started to provide advice to the PM on WikiLeaks, or when you first advised the PM of the existence of this group.
Mr Lewis : I will call on Dr McCarthy to field the detail of these questions. Dr McCarthy chaired, at least in the first instance, an interdepartmental committee for managing across government the issue of WikiLeaks.
Dr McCarthy : We certainly provided briefing to the Prime Minister ahead of the first publication of that material on the internet, but I do not have the exact date of the first-
Senator LUDLAM: Sorry, which material? They have been publishing for years.
Dr McCarthy : The US Department of State cables. I do not have the date with me of the first brief provided to the Prime Minister on that.
Senator LUDLAM: I will ask you for some fairly specific information that I will not expect you to have with you at the table. You have said you briefed the Prime Minister at some stage before the Department of State document drop occurred. WikiLeaks had been in existence for years before that. They had released material that had been sensitive, if not controversial, before that, and it was also, I think, reasonably well understood that the Department of State had lost control over a huge volume of documentation months before. It was apparent that newspapers were going to be publishing it. I am interested to know when the department first provided advice to the Prime Minister that Australia might be implicated in some of the material that was to be released by that website or through news organisations.
Dr McCarthy : It certainly was not months before the first publication. I will need to take on notice the question of when the first brief was provided to the Prime Minister.
Senator LUDLAM: Thanks; I would appreciate that. Did your office or the department provide a briefing after the release of the film Collateral Murder, which was released in April?
Dr McCarthy : Not that I am aware of.
Senator LUDLAM: Can you provide us with some information on the number of times that you provided briefings to the Prime Minister when you became aware that the documents were about to be leaked from the US Department of State?
Dr McCarthy : I do not have the information with me about exactly how many briefs were provided but I can take that on notice. My apologies; I have just found a reference to the preparation of 12 briefs for the Prime Minister on WikiLeaks. I do not have information on what period that took place over.
Senator LUDLAM: Are those briefs delivered verbally or does the Prime Minister receive them in writing?
Dr McCarthy : They are written briefs, written advice.
Senator LUDLAM: They are all written briefs. So there are 12. Are you able to provide us-not tonight, I understand-on notice the dates of those briefings?
Dr McCarthy : I could do that.
Senator LUDLAM: Thank you. Is there a particular unit, office or working group charged with investigating what WikiLeaks is doing?
Dr McCarthy : As I explained at the last estimates hearings, the Department of the Prime Minister and Cabinet continues to coordinate a whole-of-government effort in relation to assessing the information that is released, providing information to ministers and monitoring the media, but I would not call that an investigation. If you mean 'investigation' in a legal sense, it is not a legal investigation; it is a coordination function.
For a time the WikiLeaks task force operated out of the Department of the Prime Minister and Cabinet, staffed by members of the Department of the Prime Minister and Cabinet and other agencies. But towards Christmas the operations of the task force were located within PM&C. That was from Monday 29 November to Monday 13 December. On 13 December, following a meeting of the interdepartmental committee that I chaired regularly over that period, we agreed that, given the very slow release of the material into the public domain, task force members could continue to assist in that coordinated effort from their home agencies.
Senator LUDLAM: Is that task force still a standing group?
Dr McCarthy : Yes, it still exists in what we refer to as a virtual form, if you like. It is not co-located but there are members of the task force operating from their home agencies and we could reconvene it in the Department of the Prime Minister and Cabinet should circumstances change such that that was necessary.
Senator LUDLAM: Are you still its virtual chair?
Dr McCarthy : I am its real chair, but I have not chaired any of the interdepartmental committees now for some time. As I said, the material is being released very slowly.
Senator LUDLAM: What fraction of the material has been released into the public domain?
Dr McCarthy : As of this morning, my colleague tells me, 12,600 cables have been released on the WikiLeaks website-obviously not all of them referencing Australia. The information I have here is that as of 2 May approximately 200 referenced Australia.
Senator LUDLAM: Out of about a quarter of a million cables, they have dropped somewhere between-
Dr McCarthy : As I have just indicated, a quarter of a million cables have not yet been released into the public domain-it is some 12,600 or so, as I have just mentioned.
Senator LUDLAM: Who has contacted the United States government to ask for what they think has gone missing? Have you requested briefings on what has gone, and what were you told?
Dr McCarthy : Yes, at the time that the task force was set up and the issue first arose, we were in contact with the United States and the embassy here in Canberra provided a number of briefings to the Australian government, primarily to the Department of Foreign Affairs and Trade.
Senator LUDLAM: How forthcoming has the State Department or whoever you have been dealing with been on what they think they have lost?
Dr McCarthy : It was the policy of the US government not to make the cables available, so we were provided with briefings of a more general nature.
Senator LUDLAM: So WikiLeaks have them but they will not provide them to the Australian government, so they will be released on a timetable of that organisation's choosing and the Australian government will not be given a heads-up by the US State Department. Is that satisfactory behaviour?
Dr McCarthy : As I said, it was the policy of the US government not to provide the cables. We respected that policy, and against that background the United States did what they could to advise other countries, including Australia, of what the material might contain.
Senator LUDLAM: Have they made reasonable efforts to advise us of that? It does not sound as though they have done anything of the kind.
Dr McCarthy : I think against the background of the policy of the US government not to provide the actual cables, and given that Australia was one of many countries who may have been mentioned or referenced in the cables, I think the United States was having to advise a large number of countries within a very limited period. It was against that background that they made the efforts that they could.
Mr Lewis : It is safe to say that we would have preferred to have had full knowledge of the cables, and I think it was made plain perhaps not in this hearing but certainly during the last Senate estimates hearings that we would have preferred a quicker start for that information to flow. But, as Dr McCarthy has described, we have been given descriptions of those cables ahead of their release on a progressive basis.
Senator LUDLAM: Is it Australian government policy to seek the closure of the WikiLeaks website?
Dr McCarthy : Not that I am aware of, no.
Senator LUDLAM: Minister, do you want to address that? It is probably not fair to ask the department.
Senator Chris Evans: I have no knowledge of any such policy, but I am happy to take it on notice.
Dr McCarthy : I am as sure as I can be, Senator, that there is no such policy.
Senator Chris Evans: That would have been my first reaction but, rather than give you evidence that I was not sure was absolutely correct, I thought I should take it on notice.
Senator LUDLAM: Thanks. Dr McCarthy, you said that the task force that you were the chair of, before it virtualised itself, while it was still meeting, was not investigative as such; it was monitoring what was occurring-and information sharing, it sounds like. Can you tell me how you reconcile that with the fact that it appears that Australian security and intelligence organisations have been investigating WikiLeaks personnel? Were they doing that not under the direction of the task force? Was it some separate activity that was occurring or was it being done with the knowledge of the task force?
Dr McCarthy : I am not going to depart from the long-standing convention of not commenting on speculation about the activities of Australia's intelligence agencies.
Senator LUDLAM: I am not asking you to speculate; I am asking you to tell us whether they-
Dr McCarthy : It is a longstanding convention not to comment on intelligence and security matters.
Senator LUDLAM: The agencies themselves are reasonably-
Dr McCarthy : And you should take nothing more from that than that I am observing a longstanding convention.
Senator LUDLAM: The agencies themselves are generally willing to put a certain amount of information on the record. ASIO in particular have been forthcoming about the broad parameters of what they do and do not do.
Mr Lewis : Perhaps it would be better to direct that question to the agencies. I just reinforce Dr McCarthy's point that it is a longstanding convention; we would not go into the detail of what intelligence agencies are or are not doing. The statutory officeholders that head up those agencies would be better able to field those questions.
Senator LUDLAM: Okay. Can I just clarify then, before we move on: did that task force have any investigatory role or not?
Dr McCarthy : It was a coordinating body.
Senator LUDLAM: Can you provide us with the membership-not necessarily the names but the agencies that were members-of that task force?
Dr McCarthy : I can.
Senator LUDLAM: Would you be able to table that for us now?
Dr McCarthy : I can tell you that the task force comprised representatives from the Department of Prime Minister and Cabinet, Department of Foreign Affairs and Trade, Department of Defence, Attorney-General's Department, Office of National Assessments and the Australian Federal Police.
Senator LUDLAM: I don't think I caught ASIS or ASIO in that or DSD? Were they not there?
Dr McCarthy : They were not part of the task force.
Senator LUDLAM: I presume the AFP would be the lead agency as far as-did you list the AFP?
Dr McCarthy : I did list the AFP.
Senator Chris Evans: The officer listed the Department of Defence
Senator LUDLAM: Thank you. I will put these questions to ASIO when we get them a little bit later in the week but I presume they will refer me back to the minister because they are policy questions and not strictly operational. There is a report in the Sydney Morning Herald and the Age this morning that the government is moving through a bill that is before the Senate at the moment-it is with the Senate Legal and Constitutional Affairs Legislation Committee-to expand substantial liaisons, ASIO's capacity to investigate civil society organisations. I am wondering if you can tell us whether that policy has flowed, as the reporting seems to state? Does the Australian government feel that its intelligence agencies need greater capacities to investigate organisations like Wikileaks?
Dr McCarthy : The amendment you are referring to has not flowed from the Wikileaks events as described in that reporting this morning. The amendment you are referring to, Intelligence Services Legislation Amendment Bill 2011, is designed to provide a consistent meaning of foreign intelligence and a consistent approach to foreign intelligence between three related acts: the ASIO Act, the Intelligence Services Act 2001 and the Telecommunications (Interception and Access) Act. The Attorney-General's portfolio will be able to answer more detailed questions on that. But the amendment is not as reported in this morning's press flowing from the Wikileaks-
Senator LUDLAM: I understand that the bill may not be; I am referring to a specific amendment which departmental officers apparently refer to as 'the Wikileaks amendment'.
Dr McCarthy : That is the first time I have ever heard that amendment referred to as 'the Wikileaks amendment'.
Senator LUDLAM: You should obviously spend more time in the Attorney-General's Department. I thought it was worth putting to you. So, in your view, if you are refuting-I guess, I do not want to put words in your mouth-some of the implications of that article, does the Australian government feel that it needs additional surveillance powers over civil society organisations such as Wikileaks or do we have sufficient capacity in that regard already?
Dr McCarthy : I think those questions are best directed to the Attorney-General's portfolio.
Senator LUDLAM: So long as they don't refer me back to you.
Senator Chris Evans: The legislation as you know is the Attorney-General's legislation before the parliament. There is a Senate legal committee inquiry and obviously there is opportunity to ask questions of the Attorney-General's Department later in the week. That is where those matters are best pursued.
Senator LUDLAM: I will just ask one final one, because I presume this does relate directly to PM&C. Can you update us on what is currently being done to provide Mr Julian Assange protection as enshrined in the rule of law-his citizenship entitlements, essentially?
Dr McCarthy : Those questions are best directed to the Department of Foreign Affairs and Trade. That goes to consular matters.
Senator LUDLAM: I am very happy to do that, as long as you are ruling out for me that the PM's office is having anything to do with that issue at all. The PM made very strong statements that Mr Assange had broken the law, so I am just trying to test whether she is retaining an interest in this or whether it has been devolved entirely to the Attorney-General's Department.
Dr McCarthy : Consular matters have always been a matter for the Department of Foreign Affairs and Trade.
Senator Chris Evans: Senator, you referred to citizenship. I did not quite pick up the question. What is the question?
Senator LUDLAM: He is under threat of extradition. You would be aware of the circumstances that he is facing at the moment, and at one time the Prime Minister had prejudged that he had broken the law, which was later retracted. I am wondering whether he has asked formally or what kind of requests for assistance he has put to the Australian government. I am happy to be referred to specific places, as long as they do not later in the week refer me back to PM&C.
Senator Chris Evans: No, I think you are best asking DFAT.
Senator LUDLAM: All right. When was the last time the Prime Minister was briefed on matters directly relevant to WikiLeaks cables?
Dr McCarthy : I do not have that information.
Senator LUDLAM: I will just tack that on to the list of things I asked you to take on notice earlier, if I could. I will leave it there.