Lewincamp v ACP Magazines Limited [2008] ACTSC 69

Lewincamp v ACP Magazines Limited [2008] ACTSC 69 - ACTSC 2008 case summary — Zoe

[87]

(a) [the plaintiff] abused his position as Director of the [DIO], by allowing a "pro-Jakarta lobby" within DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia's national interest by providing independent objective intelligence to the Australian government.

(b) [the plaintiff] allowed a "pro-Jakarta lobby" within the DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia's national interest by providing independent objective intelligence to the Australian government.

(c) [the plaintiff] betrayed his duty as Director of the DIO, to protect the Australian national interest, by allowing intelligence assessments concerning atrocities and terrorist activities committed by the Indonesian military in East Timor to be distorted so as to be compatible with the policy (accommodating of the Indonesian government) of the Australian government of the day.

(d) [the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Lt Col Lance Collins ("Collins") in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours, thereby needlessly endangering the lives of those soldiers.

(e) [the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours.

(f) [the plaintiff] abused his position as Director of DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he tried to prevent Collins from continuing to raise constructive and accurate criticism of DIO's assessments.

(g) [the plaintiff] abused his position as Director of DIO in that, merely because of his dislike of and frustration with a leading intelligence analyst namely Collins, he participated in the passing of Collins' details to the Australian Federal Police, which resulted in Collins being unnecessarily named on a widely publicised AFP search warrant, thereby contributing to ruining Collins' career.

[155]

48. Lt-Col Collins did not consider that the Blick inquiry was proceeding in the way in which it should and, on 1 May 2003, he lodged an application for redress of grievances with his commanding officer, Lt-Col B Carey. The grievances were outlined in an attached letter dated 30 April 2003. Lt-Col Collins stated that he had received a very favourable report on his performance by the then Maj-Gen Cosgrove. However, he said on his return to Australia from East Timor in about February 2000 he was warned that the Director of DIO and others were out to get him and that was in response to the estimate he wrote in July 1998 and his subsequent comments on the "efficacy" of strategic intelligence. He stated that what occurred was "organisational reaction against criticism, which took the form of a personal attack on [him] rather than an objective response to what [he] was saying". Lt-Col Collins referred to the Blick inquiry. He claimed that his lawyer was barred from the meeting between the plaintiff and himself and that Mr Blick's account of the meeting was deficient. He claimed that the plaintiff made a comment at the meeting which was proof of the plaintiff's malice towards him. He claimed that the plaintiff's statements at the meeting confirmed that there was "an abuse of power by senior defence personnel adversely directed at [him]". Lt-Col Collins claimed that the campaign against him included the fact that he was named in the search warrant issued in 2000 and the fact that what he interpreted as unfavourable comments were made about him in his performance review for 2000. Lt-Col Collins claimed that he was poorly treated after he returned from East Timor and, more specifically, in relation to the search warrant. He claimed that he was denied procedural fairness in relation to the search warrant, that the Army did not advise him of the warrant after it had been made public and that he was not warned of the imminent media coverage. He was not given any personal support, nor was any support offered to his wife. He claimed that the Army had done nothing to clarify his position in relation to the search warrant. In addition, he claimed he had not received any performance reports for the years 2001 and 2002.

[161]

Conclusions/Findings of Fact

130. I find as a fact that LTCOL Collins, arguably the Army's most skilled intelligence analyst, engaged in organisational, albeit constructive and accurate criticism of Defence and associated intelligence organisations, with particular emphasis on DIO and DFAT but in so doing at times exceeded his remit of restraining his assessments to operational and tactical areas.

131. I find as a fact this criticism was resented by the Director of DIO, the Director of SIP Division and the Assistant Secretary - Defence Security, who formed a strong dislike for LTCOL Collins, accused the officer of encroaching into the strategic areas of intelligence assessment and ultimately caused his details to be passed, in tandem with Defence Security Branch, to the AFP resulting in him being unnecessarily named on an AFP search warrant.

132. I find as a matter of fact that the Director of DIO became so frustrated with the activities of LTCOL Collins during INTERFET that he caused the flow of intelligence to East Timor to be suspended for approximately 24 hours and that further, he wrote to the INTERFET Commander in a [sic] an attempt to muzzle LTCOL Collins.

133. I find as a matter of fact that the Director of DIO, by his refusal to attend a meeting between IGIS, LTCOL Collins and a scribe, indirectly caused LTCOL Collins to take part in the meeting without legal representation and therefore placed LTCOL Collins at a disadvantage in presenting his point of view regarding intelligence deficiencies.

134. Whilst grateful for the Director of DIO in granting me an interview, I find as a fact his dislike of LTCOL [sic] inhibits him from reacting in an objective manner to LTCOL Collins' criticisms of DIO.

135. I find as a of [sic] fact that a pro-Jakarta lobby exists in DIO, which distorts intelligence estimates to the extent those estimates are heavily driven by Government policy which overlooks (or attributes the blame to other factions), atrocities and terrorist activities committed by the TNI - in other words DIO reports what the government wants to hear.

136. I find as a fact that the abridged report of the inquiry conducted by Mr Bill Blick at the behest of the Minister fails to adequately address LTCOL Collins' concerns regarding a plan to with [sic] the Indonesians to keep everyone else out of East Timor and the conduct of the Merv Jenkins Inquiry. ...

137. I find as a fact that LTCOL Collins' 2000 PR19 was raised but never received at DOCM for reasons unable to be determined and that its fate remains unknown.

138. I find as a fact that PR19s for LTCOL Collins for the reporting years 2001 and 2002 were not raised by HQTC-A, by either - incompetence or omission.

139. I find as a fact that LTCOL Collins was not, and still has not been, informed of the results of an investigation into him by Defence and Australian Federal Police; his initial notification of the event being a telephone call from his [sic] five days after execution of the warrant when she saw media reports of the investigation which named the complainant.

140. I find as a fact that LTCOL Collins' standing in the intelligence community has been greatly diminished following his public naming on the search warrant, to the point of him being ostracised and/or held up as a laughing stock in some quarters.

141. I find as a fact that LTCOL Collins' standing in the intelligence community was not helped by his close professional association with CAPT C Fernandes. I find as a fact that LTCOL Collins was not nominated for an honour or award by any of the relevant Chiefs of Staff whilst serving with INTERFET despite being described in the highest terms by MAJGEN Cosgrove - I am unable to reach any conclusion as to why this omission occurred.

142. I find as fact that the DCO did not provide support of any kind to the complainant or his spouse - the reasons for this being twofold: no request for assistance was sought by LTCOL Collins and DCO failed, on their own initiative to be sufficiently proactive in recognising a potential family crisis following publication of the complainant's name (connected to a search warrant) in the national media.

143. I find as a fact that LTCOL Collins, [sic] career profile declined following his 1999 PR19, firstly due to his 2000 PR19 not being received by DOCM and his 2001 and 2002 PR19s never being raised by HQTC-A.

144. I find as a fact there are systemic issues in the Defence intelligence community arising from my investigation of this ROG. ...

145. I find as a fact, that the Defence Security Branch, (activated, on the balance of probabilities) by malice, at the material time failed to inform LTCOL Collins as soon as practicable after the execution of the AFP search warrant of the fact that he was not, and never had been under investigation, causing a lack of closure which remains extant almost three years after the event.

146. I find as a fact that the incident could have been prevented by the Assistant Secretary - Defence Secretary Mr Jason Browne advising LTCOL Collins, in a timely manner, of the complainant's complete lack of involvement in the security investigation, thereby bringing about an early closure.

147. I find as a fact that the deleterious effects of the incident on LTCOL Collins could have been minimised by the DCO being more proactive in inquiring as to whether the family required assistance.

Recommendations

148. The incident could have been prevented in the context of the following recommendations: [original emphasis]

a. I recommend DIO become more receptive to constructive criticism of its product, rather than being hypersensitive and absorbed with discrediting and "shooting and [sic] the messenger", notwithstanding that the "messenger's" assessments, although invariably accurate may have strayed into strategic rather than operational and tactical areas;

b. I recommend DIO reform its recruiting practices with the object of employing career professional intelligence analysts rather than uniformed or civilian officers with no intelligence background, thereby allowing professionals such as LTCOL Collins to concentrate on their core duties rather than attempting to remedy a defective product and becoming increasingly frustrated; and

c. I recommend in the above context, that Defence intelligence agencies show more objectivity in their assessments rather than attempting to report what those agencies think DFAT and the Government of the day wants to hear.

d. I recommend that DIO's product be randomly audited by a committee of recently retired and suitably cleared Defence force officers of a minimum of two-star prior service experience.

149. I recommend that the Defence Force respond to this ROG by:

a. The Chief of the Defence Force awarding a retrospective Commendation to LTCOL Collins for his efforts during INTERFET, or in lieu, writing a testimonial letter along the above lines.

b. The Head - Defence Security Authority writing to LTCOL Collins expressing regret for the long interval taken to bring this matter to a closure, advise him that he is not and never was, the subject of a security investigation in the strict sense of the term and, having communicated with the AFP, expand on Special Agent Jakiwczyk's lack of malice combined with his investigational methodology in naming him on the search warrant;

c. LTCOL Collins being encouraged to approach either the Military Compensation Scheme or a Reserve legal officer, with the object of lodging a claim under that scheme or at common law, for mental anguish suffered over a period of just under three years;

d. Seeking early Ministerial approval for the release of the contents of this Report to the complainant;

e. LTCOL Collins returning to an Intelligence Corps position commensurate with his seniority and experience, at the earliest opportunity;

f. Seeking early Ministerial approval for release of the Report prepared by IGIS to LTCOL Collins, in its entirety; and

g. DCO inquiring as to whether LTCOL Collins requires assistance for any residual domestic difficulties he may be experiencing;

h. In order to prevent a repetition of this nature I recommend that the Defence Security Agency put in place a mechanism to ensure that person(s) named in security investigations and ultimately cleared of any involvement, be informed of their status in writing and in a timely manner;

In the above context, it follows that the incident could have been prevented by the Assistant Secretary - Defence Security, Mr Jason Browne notifying LTCOL Collins of his status in the security investigation as soon as it became evident he was not under investigation.

150. I recommend, with the greatest respect to the incumbent Head - Defence Security Agency, that Service Police re-examine the Arbite Report and associated files to ascertain whether the passing of LTCOL Collins' name to the AFP was activated by malice.

151. I recommend that the entire intelligence-gathering process, embracing ALL agencies (subject to national security caveats) be referred to the Senate Foreign Affairs and Trade Committee, to ensure objectivity, professionalism and the timely provision of assessments to Governments, without fear or favour.

152. I recommend that an audit be undertaken within HQTC-A with the object of ensuring administrative procedures are in place to ensure that PARs are rendered by Commands on the due date, in accordance with Defence Instructions (Army) PERS 47-1 dated 4 DECEMBER 2001.

153. I recommend that LTCOL [...] be required to show cause as to why he should not be censured for failing to take adequate steps to ensure that PARS were raised on LTCOL Collins, regardless of the officer's promotion prospects, ambivalent attitude or the state of disarray in the administration of HQTC-A.

154. I recommend that the introduction of electronic rendition of PARS be expedited.

155. I recommend that DOCM implement a system to ensure that individual dossiers placed before PAC members are complete in every detail.

156. I recommend that no further action other than that particularised above be undertaken.

[163]

54. The Toohey report was sent to Col R A Brown for a report and Col Brown provided a report to Lt-Col B Carey, as the appointing authority. Col Brown referred to Capt Toohey's findings of fact and he concluded that all were supported by the evidence gathered by Capt Toohey during his investigation. Furthermore, he concluded that Capt Toohey's findings clearly demonstrated that Lt-Col Collins was denied the opportunity of presenting intelligence work without fear of repercussions for failing to adopt the predominant view. Col Brown said that it was open to the appointing authority on the evidence to find that Lt-Col Collins' complaints were substantiated. Col Brown set out Capt Toohey's nine recommendations. He concluded that Capt Toohey's inquiry was in accordance with his terms of reference and that it involved "a matter concerning a part of the Defence Force" so as to come within reg 69(1) of the Defence (Inquiry) Regulations. Col Brown expressed the view that the instrument of appointment complied with reg 70A and, in accordance with reg 70B, empowered Capt Toohey to make recommendations, which he had clearly done. Col Brown noted that recommendations 148 and 151 could not be implemented within the Army or even within the Australian Defence Force. He noted that the implications associated with these recommendations were much broader and that they "had considerable political sensitivity". He noted that they were firmly supported on the evidence and that they should be forwarded to CDF through CRA. Col Brown strongly supported recommendation 149(d). Col Brown said that recommendation 150 was "problematical" and could not be supported. Col Brown noted that the remaining recommendations fell within the authority of the ADF to remedy but, with the possible exception of recommendations 152 and 153, none of the other recommendations appeared to be recommendations the appointing authority could implement. He suggested that the appointing authority refer those recommendations to the most appropriate higher authority. Col Brown made certain observations in relation to recommendation 153 but it is not necessary for me to set out those observations.

[213]

AUSTRALIA'S INTELLIGENCE FAILURE

The army's top intelligence analyst has written an explosive letter to the Prime Minister, detailing the systemic failures of the nation's intelligence gathering - amid claims of a `pro-Jakarta lobby' within a leading agency.

In an exclusive report in The Bulletin, John Lyons details the reasons behind the anger and frustration of Lt Col Lance Collins who believes nothing short of a full Royal Commission will help fix the problem.

Collins ends his letter with a plea: "I strongly urge you, Prime Minister, to appoint an impartial, open and wide-ranging Royal Commission into Intelligence ... to do otherwise would merely cultivate an artificial scab over the putrefaction beneath."

"The letter is unprecedented," notes Lyons.

"It is not written by a disaffected outsider, but by an army hero hand-picked to run Australia's intelligence operations inside East Timor."

FAILING THE NATIONAL INTEREST

The letter chronicles a list of Australian intelligence failures in recent years, such as: "Iraqi weapons of mass destruction, delay in the (Willie) Brigitte case, warning of the Bali bombing, breakdown of order in the Solomons ... the independence of East Timor, death of an intelligence officer in Washington, resumption of Indian nuclear testing, fall of Suharto, the media-reported Indonesian capture of an ASIS officer, the Sandline affair and the testing of sarin nerve agent on an Australian farm by a Japanese religious sect."

The letter is the culmination of a four-year war waged within the Defence Department over a bid by Collins - appointed by General Peter Cosgrove to be his top ranking intelligence officer in East Timor - to seek redress for being wrongly accused of leaking confidential material.

The Bulletin has obtained a copy of the final report into the affair, which it has published in full. The findings include claims that a "pro-Jakarta lobby" exists within the Defence Intelligence Organisation "which distorts intelligence estimates to the extent those estimates are heavily driven by government policy ... in other words, DIO reports what the government wants to hear."

The report also found that a parliamentary inquiry should be held into `systemic issues' within the intelligence system, `primarily the fact that the product is driven by the policy of the government of the day' and formulated by officers with little or no career intelligence expertise.

Full details appear in The Bulletin.

To arrange interviews - and for a copy of The Bulletin report - contact [...] on [...] (w).

[239]

144. Mr Lewincamp indicated to me that he did not place any credence in Mr Hansson's comment that DIO had cut Dili's access off. Mr Lewincamp felt it had not been put forward by Mr Hansson with any great conviction. His comment had been linked with his indication that Mr Lewincamp had given him authorisation to cut Dili's access off which Mr Lewincamp knew to be wrong. Following the exchange with Mr Hansson as part of the process leading to the statutory declarations being completed, Mr Lewincamp saw the completed statement signed by Mr Hansson that seemed to support his original belief and that of his senior colleagues that the loss of access was due to technical reasons. Mr Lewincamp indicated it was for these reasons that he took no further action on what he considered to be a mistaken recollection on Mr Hansson's part.

145. For there to have been no attempt by the Director to verify what was the precise nature of the technical problem between the time when LTCOL Collins complained about the loss and when the IGIS was asked to undertake the first inquiry is understandable. However, once DIO's most senior IT manager had suggested that DIO itself removed access, for Mr Lewincamp not to have instituted his own inquiries to put the suggestion to rest one way or the other, was a significant error of judgement on his part in my view.

146. Mr Blick was misled as he took Mr Hansson's testimony to be confirmation of what others had been saying. Had he been made aware that within DIO itself there had been an indication from a responsible level within the IT area that the loss was not due to a technical fault, I feel sure he would have followed it up before finalising his report in the way he did. Mr Lewincamp clearly did not believe Mr Hansson but to have not mentioned Mr Hansson's comment to Mr Blick, made it inevitable that Mr Blick would have reached the conclusion he did. Some of the other material provided to Mr Blick was inaccurate due to it relying too heavily on what was believed to have been the cause of the loss of access. This appeared to make the case for a technical fault as the reason for the loss stronger than it really was.

147. From that point onwards briefings from Mr Lewincamp to the Secretary, the CDF, the Minister and the Prime Minister continued to rely on the explanation that the outage had been as a result of a technical problem.

[263]

124. As far as the first main topic of cross-examination is concerned, the basis of the defendant's challenges to the plaintiff's evidence comprised the wording of a series of electronic messages which were tendered in evidence and Mr Carnell's findings, and, in particular, his conclusion as to what Mr Hansson said at the meeting with the plaintiff on 5 December 2001 (see [43] above). The defendant asked me to draw certain inferences unfavourable to the plaintiff. I decline to do so because I accept the evidence of the plaintiff. I make the following findings. Access to the database was cut as a result of a deliberate decision by a person within DIO, namely, Mr Hansson, and there was a loss of access for about 26 hours from early afternoon on 20 December 1999 to some time in the afternoon of 21 December 1999. The decision to cut access was not made by the plaintiff. The plaintiff may have met with Mr Hansson on 20 December 1999 but he does not recall doing so. He did not direct Mr Hansson to cut access to the database. The plaintiff met with senior management at DIO (Dr Keen, Col Meekin and Mr Bowen) on the morning of 21 December 1999 and he was told of the loss of access. He was told the loss of access had occurred as a result of technical problems. He was not previously aware that the Australian troops in East Timor had access to the database. He asked if security restrictions could be put in place and directed that there be a delay in resumption while that was investigated. It was not possible and access was restored. There was a meeting between the plaintiff, Mr Winsor and Mr Hansson in December 2001 in connection with the Blick inquiry and at that meeting Mr Hansson raised the possibility of DIO cutting access to the database and the plaintiff said to Mr Hansson that that was not what he had told the plaintiff at the time. Mr Hansson subsequently signed a statutory declaration saying the loss of access to the database had been caused by technical problems. The plaintiff did not sign a statutory declaration knowing it to be false.

[526]

30. Proper material

(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(3) The defences under this Division are available as to any comment if, but only if:

(a) the comment is based on proper material for comment, or

(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.

(4) ...

31 Public interest

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

...

33 Comment of servant or agent of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.

34 Comment of stranger

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.

(2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.

35 Effect of defence

Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.

[557]

As I previously stated on 9 December 2004, Mr Carnell found that the removal of access to the relevant Dili based users was deliberate. This is contrary to the finding of Mr Blick, Mr Carnell's predecessor, in an earlier investigation. ...

To Mr Carnell his key concerns were establishing the means by which the cut to access occurred and what was said about it afterwards.

In relation to how the cut occurred, as I have said, Mr Carnell found it was the result of a deliberate decision within DIO.

On the issue of what was said about it afterwards, Mr Carnell found that the officer who ordered the cut in access may have made statements in 2001 that potentially raised issues of a legal or administrative nature. He recommended that his report be referred to the Secretary of the Department of Defence for him to consider whether an investigation should be conducted into these issues. ...

Mr McLeod concluded that three public servants then working in DIO may have infringed the APS Code of Conduct as a result of actions each had taken or had not taken in relation to this matter.

The Secretary appointed two delegates to examine whether misconduct had occurred under the Public Service Act. The delegates proceeded in accordance with that Act and have now concluded their investigation, made findings and where appropriate applied sanctions. ...

There are certain conclusions I have drawn from this matter and administrative actions that have been taken to ensure such a scenario is not repeated:

1. If it was decided to remove access to a database from those in the field, even if the consequences were not significant and the action was justified, the users should have been told and given reasons for the decision;

2. Furthermore, the fact that Mr Blick in his investigation was left to reach conclusions, which at least one officer knew to be incorrect, was highly unsatisfactory;

3. The events called for disciplinary action under the Public Service Act which has now occurred;

4. In relation to attitudinal differences between the strategic intelligence and tactical intelligence communities, significant reform has since occurred in accordance with the recommendation of the Flood Report. This process of reform is ongoing.

At a glance

Court

Decision date

Before

Source

Judgment (867 paragraphs)

Lewincamp v ACP Magazines Limited [2008] ACTSC 69 (23 July 2008)

Parties

Legislation Cited (14)

Cases Cited (36)