Australian Secret Intelligence Service

What ASIS does

188. ASIS was established by executive direction on 13 May 1952. It was conceived as a secret organisation from the outset and government did not acknowledge its existence until 1977.

189. As mentioned elsewhere in this report, just before the conclusion of the reporting period the government introduced the Intelligence Services Bill 2001 into the Parliament. One of the major objectives of the bill is to clearly define and limit ASIS's functions.

190. Section 6 of the bill is as follows:

The functions of ASIS are:

to obtain, in accordance with the Government's requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and
to communicate, in accordance with the Government's requirements, such intelligence; and
to conduct counter-intelligence activities; and
to liaise with intelligence or security services, or other authorities, of other countries; and
to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.

191. As a human intelligence (HUMINT) agency, ASIS relies on assistance from human sources rather than technical means to obtain intelligence.

192. Its principal function, as indicated above, is to collect foreign intelligence. It does so according to collection priorities determined by the National Security Committee of Cabinet. These priorities are regularly updated and reviewed to ensure that collection efforts are properly aligned to Australia's national interests.

193. ASIS disseminates the intelligence it gathers to other agencies in the form of written reports. These reports are provided directly to key government decision-makers and form the basis for intelligence assessments prepared by assessment agencies.

194. Notwithstanding the intention to place ASIS on a statutory footing and to be more open about what it does, the nature of its operations means that much must remain secret.

195. The purpose of this chapter is to report this office's oversight activities in respect of ASIS, consistent with this necessary restriction.

196. Further information about ASIS can be found on the Australian Secret Intelligence Service website.

Inspection activities

197. Each year we undertake the following inspection activities with regard to ASIS:

examining ASIS reporting to ensure that it complies with the Rules for the Retention and Communication by ASIS of Foreign Intelligence Information Concerning Australian Persons;
conducting audits of operational files held in ASIS's central office;
reviewing all submissions made by ASIS to the Minister for Foreign Affairs; and
examining ASIS's handling of applications for access to its records under the Archives Act.

198. The Director-General and I have agreed that following each such activity my staff or I would discuss any concerns that might have arisen with an appropriate senior manager or liaison officer. We also agreed that any concerns needing to be put in writing would be addressed to the Director-General.

199. I have also made a practice of following up each inspection with a letter reporting the results and outlining any issues raised during the inspection.

200. We have agreed procedures that would operate should I form the view that any matter arising from an inspection needed to be brought to the attention of the Minister for Foreign Affairs or the Prime Minister. No such matters arose during the reporting year.

Protection of Australians' privacy

201. The Rules for the Retention and Communication by ASIS of Foreign Intelligence Information Concerning Australian Persons, are endorsed by the government. The Intelligence Services Bill, if enacted, will give the rules statutory recognition.

202. The rules require that ASIS not collect, retain or disseminate information on Australians except in certain limited circumstances. These circumstances include where there is an apparent threat to the life or safety of a person and where the intelligence relates to the commission or intended commission of an indictable offence against Australian law.

203. ASIS must not retain or disseminate any information about Australians that is not strictly related to the performance of its functions.

204. The rules also require ASIS to record instances where it does collect or report on Australians, and provide the records to the Inspector-General for examination.

205. Members of my staff and I physically inspect these records at ASIS's offices approximately every two months. In addition to these visits, we conduct a daily cross-check of ASIS reporting, to which we have on-line access, to test the effectiveness of the system for identifying all instances of reporting on Australians.

206. We have also put in place arrangements to access and review other reports produced by ASIS, which, because of their sensitivity, are not placed on-line.

207. The results of these cross-checks confirm that ASIS has effective systems in place for identifying, and justifying under the rules, reports naming Australians.

208. Our regular inspection visits to ASIS headquarters led me to take up a number of issues with the Director-General. Most of these were procedural, largely concerned with the correct citation of relevant sections of the rules.

209. In a small number of instances, however, more substantive matters arose.

210. After one inspection I took up with the Director-General the potential sensitivity of reporting information obtained from an overseas source about a visit to Australia by a foreign official at the time of a domestic election. On receiving full details from the Director-General it was apparent that there were good policy reasons for the decision to report, and that the distribution of the report had been carefully and appropriately restricted.

211. In another case I queried whether the activities of a particular group were publicly known and the group could therefore be identified in ASIS reporting. The rules permit mention of Australian names where the involvement of the Australian in the activity being reported on is already public knowledge.

212. Apart from issues arising retrospectively, ASIS twice took the precaution of consulting me in advance about the approach it should take in reporting potentially sensitive intelligence. On both occasions it was appropriate that reports be produced, but ASIS took into account my views about the nature and extent of reporting that should occur.

213. We saw no evidence that ASIS was abusing its powers under the rules. On the contrary, we were impressed by the widespread acceptance of the rules by ASIS staff and also by senior management's continuing efforts to reinforce this commitment.

214. The Director-General and his staff have adopted a considered and constructive approach to ASIS's collection and reporting activities and to the role of the Inspector-General in relation to them.

Examination of operational files

215. Approximately every two months, one of my staff and I review a selection of current ASIS operational case files.

216. While this necessarily has a retrospective focus and is generally concerned with activities that are comfortably in the past, we sometimes have cause to comment on very recent actions.

217. The purpose of these reviews is not to usurp the proper operational functions of ASIS officers but rather, to monitor the legality and propriety of these operations in their totality. Having said that, we reserve the right to make comment at any time where significant issues come to our attention. This is understood and accepted.

218. For the most part, the cases we reviewed were well planned, well run, tightly controlled, and delivered outcomes which were of significant benefit to the national interest.

219. We did, however, raise a number of issues with the Director-General. While it is not possible to comment in detail on each of these matters in a public report, some of the issues raised included:

the appropriateness of recording the political affiliations of prospective human sources
the Director-General noted that, while ASIS has no interest in a potential human source's political affiliations per se, it is essential for ASIS to have an in-depth understanding of the people they are dealing with. Such information, especially when volunteered by the person concerned as in this case, may well assist that understanding and be aware of any potential for bias or prejudice in information provided;
the appropriateness of passing on information about a potential employee to a human source. In this case an ASIS officer told the human source that ASIS knew nothing adverse about the person. The Director-General agreed that this should not happen, and said he would make this clear to officers at headquarters and overseas; and
ASIS's policy on offering assistance in immigration related matters. The Director-General said that ASIS staff should make clear to people who seek such assistance that ASIS does not have the power to make decisions to grant permanent residence.

220. The Director-General provided comprehensive and thoughtful responses on every issue arising out of these inspections. In addition to this I have, at the invitation of the Director-General, met with senior managers in ASIS to discuss issues of common interest.

221. The Director-General indicated to me that he found our queries and observations valuable in reinforcing ASIS's own checks and balances in relation to its obligations to act legally and with propriety.

Ministerial submissions

222. The Director-General maintains a register of all written submissions from ASIS to the Minister for Foreign Affairs which I periodically inspect.

223. These inspections show that the submissions contain sufficient information and well-considered advice.

Contact with staff

226. Most ASIS officers meet with me prior to their postings. The purpose of these meetings is to discuss any issues which may have arisen in the immediate pre-departure period or which might arise at a particular post, and to remind ASIS representatives of the role and functions of the office.

227. In addition to these pre-departure meetings I regularly attend training sessions for ASIS officers and inductees, addressing them on accountability issues and the work of the office.

228. ASIS officers also occasionally brief me and members of staff on relevant operational and staffing matters where issues of legality or propriety could arise.

Complaint

229. There was one complaint about ASIS during the reporting period. Details of this complaint are summarised below.

Did ASIS unfairly reject an application for employment?

230. The IGIS Act (s8(2)(a)(iv)) provides that one of the functions of the Inspector-General in relation to ASIS is to inquire into any act or practice of ASIS, referred to the Inspector-General by the Human Rights and Equal Opportunity Commission (HREOC), that may constitute discrimination.

231. A complaint referred by HREOC was from an applicant for the graduate trainee program with ASIS who believed that he had been rejected because of his disability, ethnic origin and status as a migrant. He was also offended by the misspelling of his first name in their correspondence with him.

232. I sought comment from ASIS, which informed me that the complainant was not selected because when applying he had written that he did not want to perform the particular type of work required in the position for which he was applying. Furthermore, other applicants more closely met shortlisting requirements. The selection documentation required applicants to be either Australian citizens by birth or naturalization, and, if by naturalization, to have resided in Australia for a minimum of ten years. The complainant met these requirements, and in these respects was considered a qualified applicant. ASIS explained that they were unaware of any disability that the complainant may have and apologised for misspelling his name in correspondence.

233. In passing this information to the complainant I told him that it did not appear that ASIS had acted inappropriately.

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Inspector-General of Intelligence and Security