The Australian government lent support to British attempts to suppress publication of the Spycatcher book, despite privately admitting that Australia’s national security was not directly threatened by anything in the publication, newly released documents show.
Malcolm Turnbull, who was then a young lawyer but would go on to become the Australian prime minister, attracted international attention for successfully defending former MI5 officer Peter Wright against the British government’s legal attempt to stop the book’s release in the late 1980s.
Cabinet papers indicate the government, then led by Bob Hawke, backed the suppression attempt after receiving advice that British counterparts considered Australian intervention as “crucial to the outcome” and also that the book would cause vague “indirect effects” on security.
The head of the domestic spy agency Asio warned against causing “an erosion of the British goodwill” and setting a precedent for greater openness about the work of Australian intelligence agencies, according to a memo presented to the cabinet’s security committee at a meeting in Canberra on 3 November 1986.
In a continuation of secrecy, the documents relating to the security committee’s decision-making were initially blocked from public release when other cabinet documents from 1986 were published under the Archives Act in 2014. The Wright-related documents were subsequently published, with several redactions, after Guardian Australia appealed against the decision.
The security committee weighed up what role the Australian government should play in the NSW supreme court case brought by the British government against Heinemann Publishers.
A memorandum prepared by the Department of the Prime Minister and Cabinet noted that Wright had provided “detailed technical descriptions of all the methods used by British intelligence that he knew of when he retired”. The book also described “sensational actions” by the security service and dealt in great detail with the search for a Soviet “mole”.
“The British are seeking to avoid discussion of any of Wright’s specific allegations, arguing that, for the purposes of the trial, they can all be assumed to be true and even then Wright’s breach of confidentiality would be a breach of contract and inequitable,” the government memo said.
“The British government has for some months been in touch with Australian officials and intelligence agencies seeking support in its action. The British government and its legal representatives consider that support to be essential if they are to succeed, because the trial judge, Powell J, has said that he places great weight on an indication of Australia’s public interest in the affair ... Australian intervention may therefore be crucial to the outcome, and is so perceived by the British government.”
The initial memo referred only to indirect effects on Australia. “Although there is nothing in Wright’s manuscript of which the disclosure would directly threaten Australian national security, the indirect effects could well be substantial and damaging,” it said.
In a sign of institutional hostility to access to information, the then Asio chief was quoted in the memo as saying a failure to intervene could cause “a serious weakening of the Australian intelligence community’s defences against the Archives Act and FOIA [freedom of information] demands, flowing from the precedent which would be drawn from the government’s evident lack of concern to protect shared intelligence secrets in the Wright case”.
There would also be “an invitation, if not a legal precedent, to disaffected Australian officers to make similar public revelations of sensitive Australian intelligence secrets for revenge and for profit”.
The initial draft of an affidavit to be signed by Michael Codd, the then secretary of the Department of the Prime Minister and Cabinet, was amended after the security committee discussed the contents.
The revised version, approved a week later, said information-sharing relationships between Australia’s intelligence agencies and friendly counterparts were “of great value in the protection of Australia’s national security, including protection from terrorism”.
Codd’s affidavit said unauthorised disclosures by former members of similar agencies “may seriously damage Australia’s national security”. Such disclosures, he said, would decrease the quality of material shared between countries; deter potential intelligence sources within Australia from providing confidential information; increase the knowledge of intelligence services and terrorist groups hostile to Australia; and encourage disaffected former members to make similar public disclosures.
The affidavit was tendered to the NSW supreme court, but did not sway the ultimate decision. The court dismissed the British government’s attempt to restrain Heinemann from publishing the book, finding that a lot of the information was no longer confidential and it was hard to see how details of old technological methods could harm the UK’s national security.
Turnbull won acclaim for his tough questioning of Sir Robert Armstrong, Margaret Thatcher’s cabinet secretary, who conceded in court that a letter he had written was “economical with the truth”. Turnbull had been asking questions about “the difference between a misleading impression and a lie”.
The NSW court of appeal dismissed an appeal against the decision, prompting a further challenge to Australia’s high court, which also dismissed the British government’s position in 1988.
The high court considered significant questions about whether an Australian court should inquire into potential damage to a foreign state from disclosures.
It found it was not able to assess the degree of friendliness of a foreign state and such decisions “would inevitably present a risk of embarrassment in Australia’s relations with other countries”. Alternatively, it would be “subversive of the role of the courts” if the enforceability of such a claim depended on an executive decision.
The Spycatcher continues to be raised in British and Australian political contexts.
The official historian of MI5, Christopher Andrew, said in 2009 that Turnbull’s “brilliant” handling of the case had humiliated British officialdom and had triggered much-needed intelligence service reform.
In 2011, Turnbull referred to the Spycatcher case when he criticised the prime minister, Julia Gillard, for suggesting the Wikileaks founder, Julian Assange, might have broken the law in relation to the release of troves of US diplomatic cables.
“The ineptitude of his [Assange’s] detractors has given him greater kudos and importance than he deserved in precisely the same way Margaret Thatcher’s iron will made Spycatcher a global bestseller,” Turnbull said at the time.
