Australian Security Intelligence Organisation

What ASIO does

185. The Australian Security Intelligence Organisation is Australia´s security service. Its functions are set out in the Australian Security Intelligence Organisation Act 1979. It is also subject to guidelines issued by the Attorney-General.

186. ASIO´s main role is to gather information and produce intelligence that will enable it to warn the government about activities or situations that might endanger Australia´s security. It is not a law enforcement agency.

187. The focus of ASIO´s work is on terrorism, people who may act violently for political reasons, and people who may clandestinely obtain sensitive government information or otherwise harm Australia´s interests in order to further their own causes or the interests of foreign governments.

188. ASIO does not investigate lawful protest activity or engage in surveillance of ordinary members of the community going about their normal business. It has to obtain specific ministerial authority for use of its most intrusive powers, such as telecommunications interception and listening devices.

189. Other ASIO functions include collecting foreign intelligence in Australia, and providing security assessments and protective security advice.

190. Further information about ASIO, the Attorney-General´s guidelines and the Australian Security Intelligence Organisation Act 1979, can be found on Australian Security Intelligence Organisation's Internet Homepage.

Inspection activities

Context of ASIO activities

191. ASIO was in the final stages of planning for the Commonwealth Heads of Government Meeting scheduled to be held in Brisbane in October 2001, when the terrorist attacks of 11 September 2001 occurred.

192. ASIO´s response to the terrorist attacks and its preparations for the meeting, which was postponed to March 2002, necessarily required a significant increase in its overt operational activities.

Scope and reporting arrangements

193. As ASIO is principally a domestic security agency, it is the agency most likely to come into contact with members of the Australian public. There are therefore more, and a wider range of, activities that require ongoing review by the Inspector General than there are with the agencies that are collectors of foreign intelligence.

194. During the reporting period, this office inspected the following broad categories of ASIO activity:

  • warrant operations;
  • authorities to investigate;
  • access to, and use of, financial transaction reporting information obtained from the Australian Transaction Reports and Analysis Centre;
  • access to, and use of, information obtained from the Australian Taxation Office;
  • provision of information to, and liaison with, law enforcement agencies;
  • the official use of alternative documentation to support assumed identities; and
  • compliance with the Archives Act.

195. The Director-General and I have agreed that if any concerns or matters worthy of comment arise during inspection activities, my staff or I will normally discuss them with an appropriate senior manager or liaison officer in the first instance.

196. Following each inspection I write to the Director General outlining the pertinent issues. In each case ASIO has provided a considered response.

197. The Director-General and I have also agreed procedures to apply if I form the view that any matters arising from an inspection need to be brought to the attention of the Attorney General or the Prime Minister. As in previous years no such matters arose during the 2001-2002 reporting period.

Warrant operations – procedures

198. The Attorney General has the authority under the ASIO Act to issue warrants to ASIO, authorising the use of special powers such as intercepting telecommunications, using listening devices, entering and searching premises, intercepting mail, using tracking devices and remotely accessing computers.

199. ASIO only seeks warrants when there are sound operational requirements for their use and the information cannot be obtained by less intrusive means.

200. The Director-General personally signs each request to the Attorney-General for issue of a warrant and the Attorney-General´s Department provides separate legal advice to the Attorney General in relation to each request.

201. We visit ASIO´s central office approximately every six to eight weeks, and state offices as the opportunity arises, to inspect documentation associated with current or recently concluded warrant operations. There were eight visits to the central office and at least one to most state offices.

202. To ensure that ASIO does not seek warrants without proper justification, thorough planning and appropriate consideration at various levels of approval, we check the files for documents showing:

  • the intelligence or security case that ASIO has made in support of the application;
  • that the people of interest to ASIO and those named in warrants are actually identical;
  • that appropriate internal approvals for the request have been obtained;
  • the persons to whom the Director General has given authority to execute the warrant or to communicate information obtained from a warrant;
  • the Attorney-General´s approval, when obtained;
  • reports to the Attorney General of the outcome of executed warrants; and
  • that the activity concerned did not begin before, or continue after, the period approved by the Attorney General.

203. We inspected documentation for all warrants issued. We reviewed a number of warrant operation files several times, in order to be satisfied that ASIO prepared reports of the outcomes and provided them to the Attorney-General within the requisite time.

204. In each case we were satisfied that ASIO had:

  • reasonable grounds for seeking a warrant;
  • provided sufficient information for the Attorney-General to make an informed decision;
  • appropriate procedures in place to check that the conditions of the warrant were being fulfilled;
  • reported the results of warrant operations to the Attorney-General in a balanced and timely manner; and
  • maintained the key accountability documents on the relevant files.

Emergency warrants – 11 September 2001

205. In the immediate aftermath of the 11 September attacks, the Director-General of Security decided that the situation required urgent use of special investigative powers against several targets.

206. The Telecommunications (Interception) Act and the ASIO Act permit the Director General to issue certain warrants in an emergency. Such warrants have a maximum life of 48 hours, during which time the warrants and a statement of the grounds upon which they were based must be passed to the responsible minister.

207. The Attorney-General, who was not in Canberra, did not have access to secure communications and was unable to receive the documents quickly, so after telephone consultation with him the Director General issued the warrants himself. They were revoked within 24 hours and replaced by warrants authorised by the Attorney-General.

208. The Director General informed me of the situation shortly afterwards. Later inspection of the documentation revealed that use of the emergency warrants in the circumstances was entirely justified.

New kinds of warrant activities

209. Named person and computer remote access warrants, which first became available to ASIO as a result of legislation enacted in 1999, were made use of this year.

210. A named person warrant enables ASIO to intercept any relevant telecommunications of the person named in the warrant, rather than being restricted to a particular nominated service.

211. As with other warrant operations, our examination of the documentation showed that named person and computer access warrants are not sought without proper justification.

Unauthorised telephone interception

212. During the reporting period we noted 5 instances of inadvertent unauthorised telephone interception caused by human error. This is one more than the number of unauthorised interceptions we noted during the reporting period 2000-2001.

213. Details of these are as follows:

  • in two instances, the Attorney General agreed to renew warrants involving the targeting of several telephone numbers. In each case, one of the numbers in the initial warrant was unintentionally left off the renewal documentation. ASIO noticed this 2 and 3 weeks, respectively, into the life of the new warrants and immediately ceased collection against the omitted numbers. Meanwhile no product was received from the interception of the first number, but in the second case a significant number of calls were intercepted, although no reports were prepared based on the intercept. The case officers concerned have been counselled to be more vigilant in future, and supervisors have been directed to check and double check all warrant documentation to ensure that similar incidents do not occur in the future;
  • three days after the scheduled expiry of a telecommunications interception warrant ASIO discovered that collection was continuing. Collection activity was immediately ceased and none of the intercepted material was processed. An investigation revealed that ASIO had tried to terminate collection on the expiry of the warrant, but a breakdown in communications meant that its direction to this end was not immediately acted upon. ASIO has taken technical precautions against repetition and also developed ‘failsafe’ procedures to ensure that communications difficulties of the kind experienced in this case do not reoccur;
  • ASIO transmitted connection details to the telecommunications carrier before the Attorney General signed a warrant. The intention was to activate the interception as soon as possible after approval. The interception began 22 minutes before the time of approval, resulting in some communications being intercepted without authority. ASIO destroyed all records of these before processing could take place; and
  • an error in transcribing a telephone number led to a wrong service being intercepted. As soon as ASIO discovered the error it destroyed all records of the interception.

Search warrants provision of copies

214. A search of premises led to a request from the proprietor, via a legal representative, for a copy of the warrant.

215. ASIO agreed to allow inspection of the warrant but would not hand over a copy.

216. I asked the Director General to reconsider this approach and he later discussed with me ASIO´s preference not to provide copies. ASIO remained willing, however, to let people whose premises it searched overtly inspect copies of warrants.

217. I informed the Director General that I would consider his response and would probably take the matter further. At the close of the reporting period the matter was still under consideration.

Foreign translators

218. An issue that has arisen in previous years was again the subject of correspondence with the Director General. In a case involving assistance to ASIO from a foreign service I asked, shortly before the end of the reporting period, why it was necessary to use a foreign linguist to translate the product of intercepts; what efforts were made to locate an Australian linguist with the requisite language skills; the precise terms of any undertakings entered into with the linguist´s parent service; and what materials that service had access to. At the close of the reporting period I was awaiting the Director General´s response.

Minor procedural matters

219. Several minor procedural issues also arose during inspections. Examples included the unintended use of previously allocated warrant numbers, issuing of warrant numbers out of sequence, and the temporary absence of some accountability documents. In each case an adequate explanation was provided, or the missing documents located.

Authorities to investigate – procedures

220. The authority to investigate (ATI) process involves applications by ASIO staff to more senior officers for authority to conduct investigations in relation to people or organisations.

221. We regularly inspect the records of the ATI consideration process and the files recording the resulting investigative activity.

222. During the reporting period we examined files relating to every ATI issued in ASIO´s central office and a selection of those issued in ASIO´s other offices.

Authorities to investigate   results of inspections

223. As with warrant operations, detailed public discussion of specific ATI cases is not possible but comment follows in general terms upon some cases reviewed during the reporting period.

224. In one we questioned the duration of an ATI approval for a target expected to be in Australia for only a short period. The period of approval extended for many months beyond the target´s expected date of departure.

225. In another case I was briefed on a major intelligence collection activity commenced in the wake of the 11 September terrorist incident, and the means by which this activity was to be authorised. I endorsed ASIO´s approach as a practical and reasonable solution.

226. We also raised a number of minor procedural issues associated with the raising and approval of ATIs. The most common related to compliance with requirements for those seeking approval to provide a clear summary of the aims of the investigation and for approving officers to describe the limits of the proposed activity. Following our last inspection visit of the reporting period, I advised the Director-General of Security that we had noticed a marked improvement over the preceding 12 months.

227. On the basis of our inspections, ASIO´s responses to the various questions we posed and the responses of senior management to our comments, I am satisfied that the ATI regime is operating to ensure that ASIO only conducts investigations that are properly justifiable by reference to its statutory functions. The arrangements strike an appropriate balance between the operational needs of ASIO and the need to protect people´s privacy.

Dealings with law enforcement agencies

228. The increased focus on terrorism during 2001 2002 necessarily involved close cooperation between ASIO and law enforcement agencies.

229. We received several complaints flowing from joint operations involving ASIO and police services (see paragraphs 304 307).

230. In the counter terrorism context, ASIO informed us of its intention to provide identifying information about a small number of people to law enforcement agencies, so that in certain circumstances these agencies could provide intelligence they received about them to ASIO. Subject to certain safeguards I had no in-principle concerns with the proposal. I also sought access to any material passed on by ASIO, for review purposes.

231. More generally, during our periodic visits to ASIO offices we examine ASIO´s records of exchanges of information with local law enforcement agencies.

232. We found these records to be properly maintained and sufficiently detailed for us to conclude that the exchange of information that occurs does not exceed what is necessary for the performance of the functions of the organisations concerned.

233. A complaint from a former ASIO officer that ASIO officers had maliciously provided information about him to a state police service is reported at paragraphs 258 278.

AUSTRAC and the Australian Taxation Office

234. The Financial Transactions Reports Act 1988 and the Taxation Administration Act 1953 provide for ASIO to obtain information from the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Australian Taxation Office, in strictly prescribed circumstances.

235. The procedures involved in ASIO accessing financial transaction reports and taxation information are set out in memoranda of understanding between the respective parties. The Inspector-General of Intelligence and Security and the Director of AUSTRAC have also entered into a memorandum of understanding covering oversight issues and the Inspector General provides an annual report to the Attorney General on ASIO´s compliance with its obligations.

236. We regularly review ASIO´s access to financial transaction reports and it is apparent from this that ASIO is complying with the requirements of the MOU between itself and AUSTRAC.

237. ASIO has formal internal procedures for approving access to AUSTRAC similar to those applying to ATIs. They require ASIO investigators who need information about financial transactions to obtain approval from senior officers. Interrogation of the databases is not undertaken by the investigator who requires the information but by an officer specially authorised and trained for the task. Under the memorandum of understanding between ASIO and AUSTRAC the maximum number of authorised officers at any one time is twelve.

238. The procedures require that, before access is approved, the entity under investigation also be the subject of an ATI.

239. Our inspections identified one breach of this requirement. In this case approval was given for access to AUSTRAC to search for records relating to the spouse of a person who was of interest to ASIO. Although there was an ATI for the latter person, no ATI was sought for the spouse.

240. The person concerned was of legitimate intelligence interest and met the criteria for issue of an ATI. In drawing the case to the Director General´s attention I noted that ASIO had recently circulated a memorandum reminding officers of the need to obtain ATIs before seeking approval for AUSTRAC searches.

241. The procedures agreed between ASIO and AUSTRAC include a requirement that ASIO officers attend AUSTRAC premises to interrogate the computer databases, which imposes significant practical limitations on the utility of the system. Other agencies, however, have on-line access in their own premises.

242. In view of the detailed monitoring and inspection regime applying to ASIO and the security surrounding its operations it would seem reasonable that it, too, be able to have on-line access. It would also assist this office´s inspection task.

243. ASIO has less frequent need to access taxation information. We did, however, examine the relevant records and concluded that its access was in compliance with the memorandum of understanding with the Australian Taxation Office and ASIO´s own internal guidelines.

Use of assumed identities

244. Amendments to the Crimes Act during 2001 2002 require Commonwealth agencies that issue or use alternate identity documentation, to maintain appropriate records.

245. The amendments require ASIO, as soon as practicable after 30 June each year, to give the Inspector General a report for the year. The first report is due in 2002 2003.

246. As ASIO has long maintained records of its use of alternative documentation, I obtained an ASIO internal audit report on the use of such documentation and compliance with state requirements, prepared in advance of the amendments to the Crimes Act.

247. The audit report assessed the recording and control measures that are in place to limit the risk of misuse of alternate identity documentation. These appear satisfactory.

Archives issues

248. The Director-General of Security provides our office with quarterly progress reports on ASIO´s performance in meeting its obligations under the Archives Act 1983. I also meet occasionally with relevant ASIO staff to discuss their handling of significant archive issues.

249. We sometimes receive complaints about the handling of archives access requests.

250. Based on the complaints we have investigated, our occasional inspection activities, and the progress reports we receive, I am satisfied that ASIO is committed to processing access requests as quickly and efficiently as it can, and to otherwise meeting its obligations under the Archives Act.

Contact with staff

251. I regularly participate in training sessions for ASIO officers and inductees, addressingthem on accountability issues and the work of this office.

252. ASIO officers also occasionally brief me on matters that touch upon the work of the office, or to seek an independent opinion.

253. The Director General places no barriers to contact between ASIO staff and members of this office. Indeed he encourages such contact and does not seek to monitor or control it in any way. For our part, we seek to use this freedom of access positively and responsibly so as to minimise any adverse impact on the work of the agency.

Complaints and inquiries

254. During the reporting period 23 complaints about ASIO were concluded without proceeding to a preliminary inquiry (compared with 19 such cases in 2000-2001).

255. Two outstanding matters were carried over from the previous reporting period. The office conducted preliminary inquiries into 15 new matters and a full inquiry into one complaint (see Annex 1, Table 2).

256. In conducting inquiries I sought briefings on a range of subjects, as well as access to files and to individuals. The Director-General of Security met all such requests.

257. There were no self initiated inquiries or inquiries conducted at the request of a minister. Some of the complaints dealt with during the reporting period are summarised below.

ASIO career information provided to state police

258. The ASIO Act contains penalties for unauthorised disclosure of information acquired during the course of employment with ASIO.

259. A former ASIO officer was employed by a state police force, then dismissed.

260. He complained that ASIO staff whom police contacted seeking information about his career in ASIO made damaging allegations, which were passed to the police commissioner and contributed to his dismissal. He had previously complained to the Director General about this but was dissatisfied with the response.

261. The complainant became aware of the disclosures from evidence given by police during an inquiry conducted under state legislation.

262. The police said that they had made inquiries with ASIO and incorporated the results into a document provided to the police commissioner. The complainant´s knowledge of the contents of this document alarmed him considerably.

263. He did not, however, have access to the material upon which it was based, which the inquiry head had directed be kept in a sealed envelope because disclosure could possibly contravene the ASIO Act.

264. When he first complained to the Director General, an internal inquiry showed that a member of the police service, who had previously worked in ASIO, had contacted the head of one of ASIO´s state offices, whom he knew. He asked whether the ASIO officer knew the complainant or anything about the circumstances of his departure some years previously.

265. The officer responded that he did not know the complainant but understood that he left ASIO when it moved from Melbourne to Canberra many years previously.

266. The internal ASIO inquiry did not, however, reveal any other possible source of the information passed to the police. It requested information from the state police service but was not given access to the documents referred to at paragraph 262.

267. I approached the head of the state inquiry seeking access to the documents in the sealed envelope and he readily provided them, pursuant to a provision of the relevant state legislation that permitted him to do so in the public interest.

268. The documents were copies of internal police e-mail messages. While they contained details of the allegations about the complainant they did not disclose the names of the informants.

269. I therefore interviewed the person concerned, who was no longer with the police service. Under oath he provided details of the inquiries he had made, including the identities of the people with whom he had discussed the complainant.

270. He could not recall the conversation referred to at paragraphs 264 265.

271. He said, however, that another ASIO officer had approached him in the first instance, offering information about the complainant.

272. Following that he contacted a former ASIO officer whom he knew, who initially had no information but later called to pass on some allegations that he said had come from another former senior ASIO officer.

273. In view of the possibility that disclosures of the kind noted above might be in breach of the law, I obtained advice from the Australian Government Solicitor, who said that additional facts were necessary to determine if offences had been committed.

274. After receiving that advice I provided a report to the Director General of Security.

275. The report concluded that any disclosures made by the serving ASIO officer, who had since left ASIO, were not made with the authority of ASIO management.

276. Nevertheless I believed it would be reasonable for ASIO to take steps to ensure that the adverse material did not remain officially unchallenged.

277. The report recommended that the Director General:

  • Write to the head of the state inquiry refuting any and all adverse implications in relevant material before the inquiry relating to the complainant’s career in ASIO, by saying in each case that there was no basis in ASIO records for such implications;
  • Inform the acting police commissioner that ASIO holds no material to suggest that the complainant conducted himself unprofessionally while with ASIO and that any suggestions he may have received to the contrary would appear, from the Director General's and my inquiries, to be based on false, possibly malicious gossip; and
  • Refer the matter to the Australian Federal Police for further inquiry to determine if offences had been committed.

278. The Director-General implemented all the recommendations. At the close of the reporting year the police investigation was still under way.

Testing for employment suitability

279. When people apply to join ASIO, the organisation needs to satisfy itself about their suitability to work in a secure environment where the work requirements and pressures can be very different from those applying in other public sector organisations.

280. Apart, therefore, from satisfying normal job selection criteria and being able to obtain a security clearance, applicants reaching a relatively advanced stage in the selection process need to undergo psychological assessment. The results of the assessments are used to inform decisions about organisational suitability.

281. A complainant who had good background and qualifications for a position in a technical area of ASIO complained that he had nevertheless failed to be appointed after undergoing a selection process that included interviews. He was also concerned that, when he telephoned to ask for reasons, he received no substantive information.

282. This led him to believe that he might have been rejected on security grounds, with consequent jeopardy to any future applications for government employment.

283. Preliminary inquiry revealed that the complainant had proceeded through the initial selection interview for the job and been found suitable. The next step in the process was the organisational suitability assessment, including the psychological assessment, which also included an interview.

284. Several factors identified in the course of the assessment led to the conclusion that he would not be suitable. I examined ASIO’s documents on the assessment and had no difficulty with the processes leading to that conclusion.

285. In informing the complainant of the results of the inquiry I told him that the ASIO application would not affect his capacity to obtain a security clearance.

286. I also told him, however, that ASIO and the other members of the Australian intelligence community may share information about the results of organisational suitability assessments. In the event that the complainant applied for a job within one of the other agencies he would be asked to give consent to ASIO releasing the results of the assessment to the other agency.

Access to ASIO archival papers

287. A former Commonwealth employee applied to the National Archives for access to all security related information on him.

288. The Archives replied that it would seek such documentation from ASIO and, he said, told him that ASIO held 42 folios relating to him.

289. ASIO, however, only identified and released to him 32 folios that were in the open access period ie over 30 years old. The complainant believed ASIO had recruited him in the 1970s and he was concerned that it may have concealed papers relating to this.

290. On inquiry it became evident that he could not have been told that ASIO had 42 folios on him because, in accordance with normal procedure, Archives did not know how many folios there were before ASIO released them.

291. There were, however, some other folios, still in the closed period, that consisted of applications by the complainant for employment with ASIO, internal working documents relating to the applications, and ASIO´s replies to him to the effect that his applications were unsuccessful. There was no evidence that ASIO had ever recruited him.

292. Although the applications and replies were still in the closed period, ASIO agreed with my suggestion that they be released to the complainant.

Community consultation complications

293. ASIO´s responsibilities include the investigation of groups and individuals with a propensity for politically motivated violence. Sometimes ASIO needs to conduct interviews with people who may be able to assist in these investigations.

294. One such interview, which did not go according to plan, led to a complaint from the mother of the interviewee, who was a university student. His name came to ASIO´s attention as a result of his knowledge of a protest group that had been involved in a demonstration.

295. An ASIO officer who was trying to locate him obtained a contact number from a family member without revealing that he was from ASIO. When the son found out that ASIO wanted to talk to him he told his mother, who became very concerned.

296. She telephoned the local ASIO office expressing outrage at the proposal, with the result that she was invited to attend the interview also.

297. During the interview, the complainant said, she and her son felt intimidated and threatened. Although the ASIO officers present explained that it was not unusual to conduct community consultation she said that the way the interview had come about did little to reassure her and her son that this was routine. Furthermore, she was concerned that her son´s association with legitimate protest activity had led to his being singled out, hunted down and threatened.

298. In providing documents for the purpose of a preliminary inquiry, the Director General indicated that he had reservations about how the matter was handled.

299. It was apparent from the documents that the ASIO officers who put together the plan and carried out the interview were insufficiently clear about the purpose of the exercise, relative to ASIO's statutory functions. They appeared not to have been sufficiently conscious of the distinction between ASIO being able to investigate groups and individuals with a propensity for issue motivated violence, but not issue motivated individuals and groups more generally.

300. The Director General considered that this lack of clarity could have led to the complainant´s son being given the impression that ASIO was pursuing inquiries into community attitudes to relevant issues generally, rather than the potential for individuals or groups to engage in issue motivated violence in relation to those issues.

301. The Director General told me that he has taken steps to remind ASIO officers seeking assistance from the public that they must ensure their activities are at all times consistent with ASIO´s roles and functions and sensitive to community concerns.

302. In explaining this to the complainant I told her that, while the interview had been difficult for all concerned, ASIO had no intention of intimidating her son or investigating his legitimate protest activities. I also mentioned that ASIO representatives do not routinely identify themselves as ASIO officers to third parties. This practice is intended, among other things, to protect the confidentiality of people with whom ASIO has contact.

303. Finally, I was able to assure her that ASIO had, and has, no ongoing interest in her son or other members of her family and does not keep a file or dossier on him.

Search warrant allegations of theft, damage and non return of goods

304. The execution of a search warrant at a residence led to a complaint from the householder that a mobile phone seized in the search, in which the Australian Federal Police assisted ASIO, had not been returned. The complainant also alleged that a computer seized was damaged when returned. Some weeks later the complainant made the further allegations that several thousand dollars in cash had gone missing during the search and that cash and other property had been stolen in a break in a week after the search.

305. The Director General of Security and I agreed that the allegations about stolen cash and property should be investigated by the police, with supervision by the Ombudsman under the Complaints (Australian Federal Police) Act. That investigation was continuing at the end of the reporting period.

306. So far as the computer was concerned, ASIO claimed that technicians checked it before its return and it was functioning correctly. I asked the complainant´s lawyer to provide further details of the defect but no response was received within the reporting period.

307. Inquiry about the phone suggested that it had not left the premises and I informed the complainant accordingly.

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