What ASIO Does
ASIO is Australia's security service. Its functions are set out in the Australian Security Intelligence Organisation Act 1979 (ASIO Act). It is also subject to guidelines issued by the Attorney-General.
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.
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.
Under its legislation, ASIO must not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security.
ASIO does not have the statutory authority or the resources to engage in surveillance of ordinary members of the community going about their normal business.
ASIO has to obtain external approval for use of its most intrusive powers, such as questioning persons who are believed to possess information which would substantially assist the collection of intelligence in relation to a terrorism offence, telecommunications interception, use of listening devices etc.
Other ASIO functions include collecting foreign intelligence in Australia, and providing security assessments and protective security advice.
Further information about ASIO, the Attorney-General's guidelines and the ASIO Act, can be found on Australian Security Intelligence Organisation's Internet homepage.
On 17 May 2005, the Minister for Foreign Affairs announced the nomination of the Director-General of Security, Mr Dennis Richardson AO, to be Australia's next Ambassador to the United States of America. Mr Richardson departed ASIO shortly afterwards.
Mr Richardson served as the Director-General of Security (ie. the Head of ASIO) for approximately eight and a half years, following a distinguished and varied public-service career in which he held senior positions in the Departments of Foreign Affairs, Prime Minister and Cabinet, and Immigration and Multicultural Affairs. Mr Richardson also served as the Principal Adviser to Prime Minister Hawke in the early 1990s.
During his lengthy tenure as Director-General of Security, Mr Richardson had dealings with three different Inspectors-General. In the course of these dealings, Mr Richardson revealed himself to be a strong leader with a clearly evident commitment to transparency and accountability.
By choosing to heighten the public profile of his office and the Organisation (through his regular personal appearances before various parliamentary committees, attendance at security related conferences, and direct engagement with various community groups), Mr Richardson did much to demystify the work of ASIO in the eyes of the public.
Mr Richardson and his senior management team also did much to prepare ASIO to cope with a rapidly changing security environment and to make it responsive to challenges which had not been anticipated when he commenced as Director-General.
In the year or so during which our respective appointments overlapped, I valued Mr Richardson's open and constructive approach to dealings with this office and his day-to-day commitment to accountability in his management of ASIO.
On 10 July 2005, the Prime Minister, the Hon. John Howard MP, announced the selection of Mr Paul O'Sullivan as the new Director-General of Security. At the time of this announcement, Mr O'Sullivan was serving as the Senior Adviser (International) in the Prime Minister's office, having previously been a Deputy Secretary in the Department of Foreign Affairs and Trade, and having completed several senior ambassadorial level appointments.
My initial dealings with Mr O'Sullivan have all been positive, and he has evinced to me, and to his staff, a strong commitment to the principles of fairness and accountability.
Questioning and detention warrants
As discussed in the ‘The Year in Review' chapter of this report, the PJCAAD commenced an inquiry during the reporting period into the questioning and detention powers provided to ASIO by Division 3 of Part III of the ASIO Act.
I provided a written submission to the PJCAAD review of these questioning and detention powers on 30 March 2005. A copy of the submission is at Annex 2 to this report. The submission was based on the experiences of my predecessor, myself and my staff, in attending questioning conducted under warrants issued under section 34D of the ASIO Act.
In making my submission to the PJCAAD review, I drew upon information which the Director-General of Security had put into the public domain, namely that ASIO had executed questioning warrants against three persons in 2003-04.8
This office was personally represented on all days when the subjects of these warrants were questioned, for the full duration of the questioning with the exception of a relatively brief period on one day (in which questioning occurred for only a short period).
The Director-General of Security provided more up to date information on the number of questioning warrants which had been issued to date, in ASIO's submission to the PJCAAD review, as follows:
'ASIO reports annually on the number of questioning and detention warrants sought and issued. We do not, however, normally publicly report those totals outside the annual Australian Security Intelligence Organisation Report to Parliament. An exception has been made here for the purpose of the Committee's Review. Eight questioning warrants have been sought and issued since the legislation commenced on 23 July 2003. No detention warrants have been sought or issued since the legislation was enacted."9
Mr Richardson also appeared at a public hearing before the PJCAAD in Canberra on 19 May 2005, and in his introductory remarks provided some additional details on the use ASIO had made to that date of its new powers:
'The questioning power has been utilised on eight separate occasions since the legislation was enacted in July 2003. The detention power has not been utilised. No individual between the ages of 16 and 18 years has yet been questioned and there has been no strip searching undertaken. The fact that there have been no detentions, no questioning thus far of 16 to 18 year olds and no strip searching is entirely consistent with expectations expressed to this committee at the time and is consistent with what was stated by the then Attorney-General in his second reading speech. It is a good thing that those powers have not had to be utilised … in the event that they are needed they will be important for the safety of the community." 10
When I appeared before the PJCAAD the following day, I used my opening remarks, to expand on the role played by my office:
'For the first three warrants, the office attended on 20 of the 21 days involved. For the reasons given in paragraph 21 of my submission, the practice is now to attend on the first day and then decide if further attendance is required. In the five further warrants, the result has been that I or my staff have attended on the first day and not on subsequent days. I would emphasis that, where there is not attendance on a particular day, my staff and I make a point of reading all of the transcripts carefully and, if necessary, viewing relevant parts of the video." 11
I can confirm, consistent with the limitations imposed by section 34VAA of the ASIO Act, that a number of questioning warrants in addition to the eight referred to by Mr Richardson, were executed towards the end of the reporting period.
Either myself or one of my staff attended at least the first day of questioning under each of these warrants, and we also attended some additional days of questioning.
The overarching conclusions I reached from the questioning sessions attended by my office during the full reporting period were, as follows:
- In each instance, the basis for requesting the warrant was founded on a strong intelligence case (details of which are provided to me in advance of each warrant being sought).
- A variety of issuing and prescribed authorities were used, rather than one or two qualified individuals being used.
- Care was taken to ensure that the serving of the warrant papers was done discretely, with a view to causing minimal overt disruption to the activities of the subject of the warrant.
- The facilities used for each questioning session were appropriate, with adequate provision made for the needs and requirements of the subjects of the warrant and their legal representatives.
- The subjects of questioning have been accorded dignity and respect by prescribed authorities and ASIO questioners, despite conduct on the part of some subjects which might be cause for contempt actions were these court proceedings rather than questioning sessions.
- Information obtained in the course of various questioning sessions appears to have materially assisted ASIO's counter-terrorism related activities.
During 2002-03 this office received a significant number of complaints about ASIO's use of entry and search warrants. The catalyst for several of these complaints was a series of entry and search warrants executed in the weeks following the Bali bombings of October 2002.
The then Inspector-General, Mr Blick, conducted inquiries into each of these complaints, all of which were concluded during 2003-04 and reported in that year's annual report. Mr Blick found that generally the complaints could not be substantiated but he did identify some procedural issues in relation to the conduct of the searches and recommended that ASIO and concerned law enforcement agencies should work towards a common understanding of each party's roles and responsibilities.
During 2004-05, I met with the Director-General of Security, the Commonwealth Ombudsman, and senior officers from the Australian Federal Police (AFP), to discuss the development of a memorandum of understanding (MOU) or agreements between ASIO and the AFP, to clarify the respective responsibilities of each party when both agencies are involved in the execution of such warrants.
Work on this is continuing, but in the meantime the Ombudsman and I will continue to work together to monitor and oversight joint operational activities of this kind. I would expect that when this work is completed, a similar approach might be applied to state jurisdictions, where there is operational cooperation between ASIO and local police services.
As mentioned earlier in this report, ASIO executed a number of overt entry and search warrants in the later part of the reporting period which received significant amounts of media coverage at the time.
My office received complaints arising from the execution of these entry and search warrants. These complaints were made by individuals with a direct involvement in these matters, their legal representatives, and community groups/concerned individuals with no direct involvement but a genuine concern that ASIO be held accountable for its actions. These complaints raised a range of issues, including:
- whether the legislative requirements had been met for the issue of the warrants
- whether ASIO had been responsible for the alleged unauthorised disclosure of information to the media, tipping the media off that a series of 'raids" were to be conducted
- whether the alleged unauthorised disclosure of information about the subjects of the warrants had been orchestrated to deliberately prejudice the interests of these individuals, and
- in those instances where goods or property were seized, ensuring that this material was returned in a timely manner.
Each of these complaints, which were received in the last weeks of the reporting period, were the subject of ongoing inquiries, or administrative action, at the end of the reporting period.
It is worthy of note that none of the complaints received in this office about ASIO's operational activities in June 2005, were along the lines of the complaints received in 2002-03. This indicates that what lessons there were to be drawn from the execution by ASIO of various entry and search warrants in 2002-03, have apparently been learnt, and that this experience has informed the planning for these later overt searches.
Immigration related issues
As discussed in ‘The Year in Review' chapter of this report, there has been a noticeable increase in the number of complaints about the timeliness with which ASIO processes security assessments for immigration applications.
I initiated preliminary inquiries into a significant number of these complaints, and the remaining complaints were handled administratively.
In June 2005, the government announced that it was committed to more timely processing of immigration applications by those agencies which are involved in such matters. This commitment combined with additional resources should contribute to a reduction in the time it takes for immigration applications which require individual security assessments to be processed.
As at the end of the reporting period, we continued to receive immigration related complaints but the numbers appear to be reducing.
I believe it is important for the role and functions of my office to be visible to as wide a cross-section of AIC staff as possible, and that we should wherever possible promote and reinforce messages about acting legally and with propriety. To this end, my staff and I accept as many invitations as possible to present at AIC-wide and agency specific training courses.
During 2004-05 either I or a member of my staff presented at seven in-house training courses run by ASIO on the subject of ethics and accountability.
I was especially pleased that one of these courses was run specifically for ASIO's generalist intelligence officer (GIO) trainees as a part of their induction into the Organisation, as this served to emphasise at the outset of their careers the importance of ethical conduct and accountability.
I also attended a residential component of the GIO training course, so that I could witness some of their training first hand, and address any questions the trainees might have in a less formal/intimidating setting than might have been presented in their initial period with the Organisation.
In addition to the above, my staff and I regularly present at the AIC-wide common induction program which has been developed in response to a recommendation in the Flood report. A number of dedicated spaces are reserved for ASIO personnel to attend these courses.
So as to have a better understanding of the work of ASIO, the former Director-General of Security, Mr Richardson, extended a general invitation for myself and my staff to attend other training courses run by the Organisation. The office took advantage of this invitation during the reporting period to attend some courses where there was a clear overlap between the course content and the interests of this office.
Scope and reporting arrangements
Due to its role and functions, ASIO is the AIC agency most likely to come into contact with members of the Australian public. It follows logically that ASIO's intelligence collection activities should be subjected to more intensive and more frequent review by the Inspector-General than any of the other members of the intelligence community.
The largest concentration of ASIO staff is in Canberra where the Organisation has its headquarters. ASIO also has offices in other mainland capital cities, and a network of liaison officers who are based overseas.
Since becoming Inspector-General, I have increased the frequency of visits to ASIO's central office and to its various state collection offices to match the increasing operational tempo of the Organisation. During the reporting period, my staff and I conducted 36 inspection visits to ASIO's various offices. In most (but not all) instances, two staff conduct these inspections.
It is my objective to visit each of ASIO's Australian collection offices at least once each year, and my office visits the busier offices three to four times a year (or more frequently if other work takes us to those localities). During 2004-05 this objective was achieved.
It has been the practice of successive Inspectors-General to write to the Director-General of Security upon taking office, and set out the range of inspection activities they plan to undertake. I did so myself, shortly after my appointment as Inspector-General.
In my letter to the then Director-General of Security, I indicated that if any concerns or matters worthy of comment were to arise during an inspection activity, a member of my staff or I would discuss them with an appropriate senior manager or liaison officer in the first instance. I also indicated that following each inspection visit I would write to the Director-General with a summary of findings.
I reiterated that commitment to the Director-General in December 2004, when I wrote to him setting out the proposed visits schedule for the 2005 calendar year.
During the reporting period, and consistent with my advice to the Director-General, this office inspected records associated with the following ASIO activities:
- warrant operations
- authorities to investigate
- access to, and use of, information obtained from the Australian Transaction Reports and Analysis Centre and 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.
ASIO has access to a range of special powers to assist it to perform the functions mandated for it by parliament. These special powers can only be used in limited circumstances following the issue of a properly authorised warrant.
The use of special powers is provided for under Divisions 2 and 3 of Part III of the ASIO Act, and various sections of the TI Act.
The Attorney-General is the issuing authority for all special powers warrants, with the exception of questioning and detention warrants issued under section 34D of the ASIO Act. The issuing authority for s34D warrants will ordinarily be a Federal Magistrate or a Judge. A s34D warrant cannot be sought from an issuing authority unless the Attorney-General has consented to this action.
In addition to questioning and detention warrants there are the following powers warrant categories:
- telecommunications interception (including named person warrants)
- entry and search
- computer access
- listening device
- tracking device relating to persons or objects, and
- inspection of postal and delivery service articles.
Shortly after becoming Inspector-General I increased the frequency of our warrant inspection visits to ASIO's central office from bi-monthly to monthly. This frequency was maintained during 2004-05 and the duration of those visits was increased.
My decision to increase the frequency of our warrant inspection activities reﬂects my belief that the use by ASIO of special powers (which by their nature significantly intrude upon the privacy of individuals), requires special scrutiny by this office.
The increase in the duration of these inspections is a by-product of the growth in the size of the Organisation and the range and number of investigations undertaken by the Organisation in recent years.
In scrutinising ASIO's warrant related activities, we particularly check that:
- the intelligence or security case that ASIO has made in support of the application is soundly based
- the individuals named in these warrants are actually identical with, or closely linked to, persons of serious security interest
- appropriate internal approvals for the request have been obtained
- the Director-General has identified in writing those individuals whom may execute the warrant, or communicate information obtained from the warrant
- that appropriate certifications or approvals external to ASIO have been obtained (eg the Attorney-General, and in the case of s34D questioning and detention warrants, the issuing authority)
- reports to the Attorney-General of the outcome of executed warrants are factual and have been provided in a timely manner, and
- the activity concerned did not begin before, or continue after, the period approved.
During the office's rolling visits programme, the aim is to inspect supporting documentation for all warrants which are issued and to review each report which is provided to the Attorney-General on the use to the Organisation of information obtained through the use of each special powers warrant.
This frequently involves reviewing the same warrant documentation file more than once during any given reporting period.
During the reporting period, the inspection results were that in each case where a warrant had been issued, ASIO had:
- reasonable grounds for seeking the warrant
- provided sufficient information for the Attorney-General (or the issuing authority in the case of s34D warrants) 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 an accurate manner, and
- maintained the key accountability documents on the relevant files for examination by the OIGIS.
As the resources of the office permit, my staff and I also periodically review a sample of operational management files alongside the warrant documentation files. In the past the inspection of operational management files relating to warranted collection activity has usually occurred only in the context of a preliminary or full inquiry being conducted into a complaint. I am hopeful of reviewing more such files, as a regular inspection activity, in the year ahead.
Outcome of warrant inspections
While it is my intention for this report to be as comprehensive as possible, ASIO's warrant operations tend to be highly classified (for quite valid source protection and operational security reasons). As a consequence, while we have tried to fairly reﬂect the outcomes of our inspection activities, some details necessarily cannot be included.
Unauthorised telephone interception
There was one instance of an error which potentially could have resulted in unlawful telephone interception during 2004-05. This compares to three instances of inadvertent unlawful interception in 2003-04.
In the case in question, ASIO sought and obtained a named person's warrant under section 9A of the TI Act in respect of an individual of security interest. However, ASIO inadvertently provided the telecommunications carrier with an incorrect telephone number. The telecommunications carrier duly complied with this request, unaware that a wrong number had been provided to it.
Fortunately, the number which was incorrectly nominated for interception was not actually an active (ie. connected) service at that time. Although the potential existed for unauthorised collection to have occurred, as the intercepted service was not connected, this did not happen. All action for interception was ceased immediately the error was identified, and the correct service was then placed on cover.
I am satisfied that ASIO has appropriate checking procedures in place to ensure mistakes of this kind do not ordinarily slip through, however, on this occasion those processes failed to identify the transcription error described above. I accepted that this was a product of genuine human error, rather than evidence of a widespread systems failure or of anything more sinister.
Interception management systems
Prior to the above mistake being identified, I had already instituted independent checking of the technical systems ASIO has in place which facilitates some of its warranted intelligence collection activities. The desirability of undertaking these checks was reinforced by the above case.
In the course of regular warrant inspections, my staffand I will sometimes identify details of telecommunications services which are being, or have been, the subject of interception activities. We also note the expiry dates of the warrants which authorise such collection.
On a periodic basis, we interrogate ASIO's interception management systems, to check that collection is only occurring against numbers which are listed on properly authorised warrants, and within the specified collection period.
The office also interrogated these systems using telephone numbers of persons of past interest to ASIO (taken from expired warrants), and of persons of possible interest (where this information is available to us), as an additional check on the integrity of the system.
When conducting checks of this kind, services which the management system shows to be on cover are also randomly selected, and checks are then made that a valid and current warrant exists, authorising collection.
I am pleased to advise that none of these independent checks revealed any instances of unauthorised or inappropriate collection.
Warrant related processing issues
The number and variety of warrants used by ASIO has risen significantly in the four years since the terrorist attacks which occurred in the United States of America on 11 September 2001. The increase in the number of warrants being sought has put pressure on all sections of ASIO, not least the Warrant Documentation Section, which has to process an increased number of requests.
Notwithstanding the vigilance of the staff in this section, some processing errors will inevitably occur. In this reporting period, the office identified some processing errors ranging from inconsequential to potentially quite serious.
One was an anomaly relating to certain authorisation lists. These are lists in writing, endorsed by the Director-General (or a senior officer of the Organisation appointed by the Director-General) of officers and employees of ASIO, and other people, authorised to exercise on behalf of the Organisation, the authority conferred by the relevant warrant, and/or to communicate information which has been obtained under the warrant.
The preparation and maintenance of such lists is required by various provisions of the ASIO Act and the TI Act.
In one instance ASIO brought to our attention that signed authorisation lists could not be located in respect of a particular operation. This being so, either of two scenarios were likely to pertain:
- if the authorisation lists had been put to the Director-General and signed, there would be no legal consequences ﬂowing from the subsequent absence of the lists (but it would be prudent to issue new/substitute lists as soon as possible), or
- if the lists were not put to the Director-General, or put forward and not endorsed, it was possible that action purportedly taken under the warrant may have been unlawful, despite the fact that the warrant itself is valid.
I accept that it is extremely unlikely that authorisation lists were not prepared for this operation, or if they weren't, that their absence would not be noticed in the various internal and external checking processes that each warrant request is subjected to before submission to the Attorney-General.
Based on the experience of this office in reviewing warrant documentation over many years, the fact that ASIO brought this problem to our attention, and that the warrant package was subjected to several layers of review before it was endorsed, I believe that in all likelihood the lists were put forward and signed by the Director-General but then either misfiled or accidentally destroyed.
The period between the date of effect of the warrants and the date when the absence of the authorisation lists was noted was quite short. Replacement authorisation lists were issued on the same day that this anomaly was identified.
I advised the then Director-General of Security that I did not consider this matter indicative of a systems failure, but did take the opportunity to highlight the importance of ensuring that authorisation lists are correct in every detail and available for checking, lest the conduct of an operation be threatened.
Two instances were noted where ASIO had mistakenly advised a telecommunications carrier that warrants had been endorsed by the Attorney-General, 24 hours before the endorsement had actually been obtained. Neither of these requests was actioned before this mistake was identified, and in consequence the only collection which occurred was legally authorised. However, the importance of avoiding such mistakes in the future was emphasised to ASIO.
During an inspection my staffidentified a potentially significant processing defect relating to a particular warrant. The records we reviewed indicated that the Attorney-General had read the warrant request and approved the operation, but there was no indication that he had signed the warrant itself.
This was drawn to the attention of the responsible officer, who was able to confirm that the warrant had not yet been executed for technical reasons. Further action under the warrant was immediately ceased whilst a replacement warrant was put to the Attorney-General, and subsequently endorsed.
Timeliness of reporting on warrant outcomes
As in the last reporting period, the timeliness of warrant outcome reporting provided by ASIO to the Attorney-General was queried.
While there is a statutory requirement for ASIO to report to the Attorney-General on the outcome of every warrant issued to it, the only mandatory timeframe for the provision of these reports is imposed by section 17 of the TI Act, which requires the Director-General of Security to furnish reports of TI related warrants within three months of expiry or revocation.
By contrast, section 34 of the ASIO Act simply requires the Director-General to furnish a report to the Attorney-General in respect of each (non-TI) warrant, ie. it does not specify a period within which reports must be provided.
There were at least four instances where reports were provided to the Attorney-General in the range of 6-12 months after the expiry of the relevant warrants, and two reports in respect of questioning warrants which were provided more than a year after their execution (although I understand early oral briefings were given to the Attorney-General).
In respect of the former instances I wrote to the then Director-General of Security suggesting that unless there are exceptional circumstances it should be possible to provide reports on non-TI warrants within 90 days. The latter instances, relating to reporting on the utility of questioning warrants, prompted me to recommend in my submission to the PJCAAD review of Part III of Division 3 of the ASIO Act, that section 34P of the ASIO Act should be amended to require ASIO to provide such reports to the Attorney-General within 90 days.
Notwithstanding the above comments, the majority of ASIO reporting on the outcome of warrants and the utility of the information obtained occurs in a timely fashion.
Authorities to investigate—procedures
Prior to the investigation of an individual or organisation by ASIO, the Attorney-General's Guidelines and ASIO's internal policies and procedures require the preparation and approval of an authority to investigate (ATI).
The initial ATI process involves the formal identification of the person or organisation to be investigated and proposes the level of the investigation (as set out in the Attorney-General's Guidelines), and the objectives and duration of the investigation.
The seniority level at which an ATI can be approved is dictated by the nature and sensitivity of the investigation being proposed. The more sensitive or intrusive the proposed investigation, the more senior the authorising officer in ASIO has to be.
My staff and I aim to review all ATI's which are issued. To achieve this ASIO's central office is visited at least every two months (sometimes more frequently), and ASIO's other domestic offices at least annually. During 2004-05 we conducted 19 ATI inspections.
My office revamped its internal ATI checklist to ensure rigour in the review process. Issues regularly looked at include:
- whether there were reasonable grounds for the request
- whether the level of the ATI is appropriate for the proposed investigative activities
- if the proposed duration of the approval is appropriate or excessive
- what limits, if any, have been placed on the investigative activity, and whether these are appropriate and reasonable
- if those checks undertaken were conducted within the authorised period
- whether a formal review of an investigation has taken place at the completion of the investigation, or where a renewal has been sought, and
- whether supporting paperwork is placed on file.
Authorities to investigate—inspection results
As with warrant operations, detailed public discussion of specific cases is not possible but comment follows in general terms upon several issues which arose in the course of ATI inspections.
We made a range of suggestions for possible improvements to the ATI template. In all instances the suggestions were acknowledged and where technically feasible, implemented.
Several instances were noted where, due to an administrative oversight, different ATI's were issued on the same individual within a few days of each other. We suggested that, if possible, applications for an ATI on an individual on whom an ATI already exists should be automatically rejected.
Some quality control issues were raised, relating to the inclusion of irrelevant (ie. accidentally transposed) information in an ATI which had no relationship to the person of interest.
We also identified several instances where the review dates proposed by the originating officer and authorising officer were inconsistent and could give rise to confusion about the duration of the authorisation.
The office identified several instances where ASIO's internal policy requirement that warrant operations be supported by a current ATI had not been fully met (due to the lapsing of one ATI and a gap of several weeks before renewal).
I was satisfied that the ATI processes are taken seriously, and certainly that requests are made only when there is a valid basis for doing so. Since becoming Inspector-General, I have noticed an improvement in the standard of ATIs, and those issues identified as being of concern in this reporting period are all fairly minor.
ASIO and law enforcement agencies
The continuing focus on counter terrorism activities during the reporting period necessarily involved close cooperation between ASIO and law enforcement agencies.
During regular visits to ASIO's state offices the office examines the Organisation's files which deal with liaison with local law enforcement agencies and any exchanges of information about individuals of security interest.
In conducting the reviews of these files we paid particular attention to the passage of, storage, and access to, information on persons of intelligence interest to law enforcement agencies. ASIO's control measures were found to be satisfactory.
AUSTRAC and the Australian Taxation Office
The Financial Transactions Reports Act 1988 (FTR Act) 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. The procedures involved in ASIO accessing financial transaction reports and taxation information are set out in MOUs between the respective parties.
The IGIS and the Director of AUSTRAC have also entered into a MOU covering oversight issues and the Inspector-General provides an annual report to the Attorney-General on ASIO's compliance with its obligations.
I provided a report to the Attorney-General on 1 September 2005, covering the 2004-05 reporting period, certifying ASIO's compliance with the requirements of the FTR Act and the terms of its MOU with AUSTRAC.
During this reporting period, my staffconducted eight AUSTRAC related inspections.
In the course of the inspections, one instance was noted where checks were undertaken four months after the relevant ATI had expired. While the requirement for an ATI is an internal rather than statutory requirement, the need for these requirements to be met was reinforced.
My staff and I, in consultation with AUSTRAC, have been involved in the scoping of an electronic template, which should assist in eradicating errors of this kind. This template will be developed by AUSTRAC.
ASIO has consulted my office on the development of revised internal guidelines dealing with access to, and the communication of, financial transaction records which are relevant to security investigations.
Overall, an improvement was noted in the quality of requests for AUSTRAC checking during the reporting period. This improvement appears to have been built on a greater familiarity/understanding of what such checking can and cannot deliver, and good internal guidance.
As indicated earlier, ASIO also has access to taxation records in strictly prescribed circumstances, although it does so relatively infrequently. My office reviews all instances where ASIO seeks and/or obtains access to taxation records. On the basis of these review activities, I am satisfied that ASIO is complying with the requirements of the MOU between itself and the Australian Taxation Office.
Use of assumed identities
The insertion of Part IAC into the Crimes Act 1914 (Crimes Act) came into effect on 12 October 2001. This requires Commonwealth agencies that issue or use alternate identity documentation, to maintain appropriate records.
Section 15XUA(1) of the Crimes Act requires ASIO, as soon as practicable after 30 June each year, to provide the IGIS with a report for the year just ended. The Director-General of Security furnished me with such a report for 2004-05 on 5 August 2005.
The report showed that ASIO issued an increased but still moderate number of authorisations for the use of assumed identities by its officers for appropriate purposes.
The Director-General of Security also provided me with six-monthly internal audit reports which indicated no concerns had been identified in the issuing, variation, use, and cancellation of relevant supporting documentation.
During 2004-05, my staffindependently inspected ASIO's assumed identity registers on four separate occasions. We reached the same conclusions as ASIO's internal auditor and the Director-General of Security.
The Director-General of Security provides my office with comprehensive quarterly progress reports on ASIO's performance in meeting its obligations under the Archives Act 1983. These reports provide good insight into ASIO's workload in respect of applications for access to ‘open-period' records (ie. documents which are more than 30 years old) and the extent to which statutory timeframes for consideration/release of such material are being met.
The Director-General's quarterly reports on archive related activities also provide an indication of any trends which might be developing, in relation to requested material, or possible difficulties in meeting high volume requests.
I also meet periodically with relevant ASIO staffto discuss their handling of significant archive issues.
Complaints are sometimes received about the handling of archives access requests but we received no such new requests during 2004-05.
Although I will consider pursuing archive related complaints about ASIO (when they raise issues of contemporary significance), my inclination is to remind individuals who are dissatisfied with decisions on archives applications that they have the right to have such decisions reviewed by the Administrative Appeals Tribunal.
On the basis of the reports I have received from the Director-General and speaking to members of his staff, I am satisfied that ASIO's performance in meeting its obligations continues to be satisfactory.
Contact with staff
My staff and I regularly address training sessions for ASIO officers on accountability issues and the work of this office. I believe this is an important responsibility and as a consequence readily accept invitations to speak to ASIO staff.
ASIO officers brief me from time to time on matters that touch upon the work of the office, or to seek an independent opinion. The former Director-General of Security, Mr Dennis Richardson, placed no barriers to contact between ASIO staffand this office, and his successor, Mr Paul O'Sullivan, is similarly minded.
Due to a combination of history, the terms of their employment contracts, and fears of possible disruption to their essential activities, ASIO staffhave as a matter of practice not belonged to trade unions but have had their interests represented to management by a Staff Association.
I have continued the practice of my predecessors of meeting with the President of the ASIO Staff Association, on at least an annual basis. Due to a changeover in this leadership position, I had two such meetings during 2004-05.
Complaints and inquiries
Five full or preliminary inquiries into complaints about ASIO were carried over from 2003-04. Each of these inquiries was finalised in 2004-05.
The office conducted preliminary inquiries into 23 new complaints about ASIO (compared to 10 in 2003-04), and initiated full inquiries into four new complaints (two in 2003-04).
The office received 50 other complaints about ASIO, from individuals seeking to reopen former complaints, or new complaints allegedly involving ASIO (compared to 35 in 2003-04). These complaints/requests were handled administratively rather than as preliminary or full inquiries.
The increase in the number of preliminary inquiries and complaints about ASIO handled administratively, is attributable to complaints about the timeliness with which ASIO handled requests for security assessments on immigration applicants. A fuller explanation of this is contained in ‘The Year in Review' chapter of this report.
Some of the complaints or referrals leading to inquiries by this office are summarised below.
Possible forewarning of the Bali bombing
Following the terrorist bombings in Bali in October 2002, the Prime Minister asked my predecessor to conduct an inquiry to establish whether Australia's intelligence community or the AFP, had advance warning of the bombings.
Mr Blick conducted a thorough investigation before reaching the conclusion that there was no such advance warning available to any of the agencies whose records he had examined. An unclassified version of Mr Blick's report is contained in the 2002-03 IGIS Annual Report (which is accessible via the IGIS website at http:www.igis.gov.au/annual.cfm).
The Flood review also considered material relating to the Bali bombing, in preparing an appreciation of how Australia's foreign intelligence agencies understood/responded to Jemaah Islamiya (JI) and its emergence as a significant terrorist network in our region.
In the report of his inquiry, which was published in July 2004, Mr Flood made the following pertinent observation:
'The Inquiry has seen nothing to indicate that any Australian agency, including ASIO, had any specific intelligence warning of the attack in Bali. This is consistent with the findings of the Inspector-General of Intelligence and Security's report on the Bali terrorist attack.' 12
Shortly after the publication of Mr Flood's report, a member of the public raised some concerns with a member of parliament, suggesting that notwithstanding these investigations, ASIO might well have had forewarning of the Bali bombings.
The basis for these concerns was that the complainant was a personal acquaintance of an ASIO officer and his wife, and was staying with the couple for the days either side of the bombing incident.
The complainant indicated that the ASIO officer with whom she was staying had received a call on the evening prior to the bombing requiring him to return to his office to receive a communication. The complainant construed from this, and other indications, that ASIO could well have had advance notice of the impending atrocity.
With the agreement of the person concerned, this matter was referred to me by the member of parliament for consideration. I deemed it appropriate to conduct a full inquiry.
In my investigation, which involved interviewing the ASIO officer in question, examining communication records, and accessing relevant files, I was able to satisfy myself that a single faxed document was indeed sent to the ASIO officer on the night of 11 October 2002, but that document could not be construed as in any way constituting forewarning of the bombings.
In light of the above, I concluded that while the complainant was sincere, there was nothing in the information they provided which indicated specific knowledge on the part of ASIO of the impending attack. It does not cast into doubt the relevant conclusions of my predecessor's inquiry or the Flood review.
Possible AIC complicity in the arrest and detention of an Australian citizen
I became aware in the second half of the reporting period, via media reporting, of allegations that an Australian person with dual citizenship had been arrested and detained in his former homeland. Claims were made that members of the AIC may have had some involvement in his arrest and purported torture.
Given the serious nature of these claims I initiated preliminary inquiries with ASIS and ASIO, as I considered these agencies would be the most likely to have had dealings with, or knowledge of, the individual concerned.
I saw no indication that either agency had acted in the manner suggested, and insofar as these agencies might have had any interest in the individual, this was entirely appropriate.
Inappropriate interference in personal affairs
In the first half of the reporting period, I received a complaint that an ASIO officer had exerted undue pressure on the marriage of two persons, with a view to taking operational advantage of any resulting domestic disharmony.
The sensitive subject matter associated with this complaint precludes me from providing fuller details, but upon investigation I concluded that ASIO had not acted unprofessionally or improperly.
Generalist intelligence officer training
In October 2004, I received a complaint about the quality of the training offered to trainee generalist intelligence officers and a range of cognate human resource development issues. After discussions and consideration of the person's options, I decided at that time to exercise my discretion under section 11(2) of the IGIS Act not to conduct an inquiry.
The complainant in this matter provided additional information later alleging bullying, partiality in the treatment of trainees, and issues surrounding performance feedback. I then decided to initiate a full inquiry into these matters, and this inquiry was still in train at the conclusion of the reporting period.
8 ASIO Annual Report 2003-2004, unclassified version, pp.39-40
9 ASIO submission to the PJCAAD Review of Division 3, Part III of the ASIO Act 1979, submission number 95, paragraph 11.
10 D Richardson AO, evidence to the PJCAAD Review of Division 3, Part III of the ASIO Act 1979, Committee Hansard, 19 May 2005, pp.4-5.
11 I Carnell, evidence to the PJCAAD Review of Division 3, Part III of the ASIO Act 1979, Committee Hansard, 20 May 2005, p.2.
12 Flood, p.42.