What ASIS Does
ASIS was established by executive order on 13 May 1952 and operated under government directive until the Intelligence Services Act 2001 (ISA) came into effect on 29 October 2001.
ASIS collects foreign intelligence, generally relying on human sources to obtain information. It produces and disseminates intelligence reports to key government decision-makers. It also undertakes counter-intelligence activities, liaises with overseas agencies, and undertakes other activities formally directed by the Minister.
The intelligence collection, reporting and other activities of ASIS are regulated by ministerial directions, ministerial authorisations and privacy rules, which have been made pursuant to the ISA.
Intelligence priorities for ASIS and other members of the AIC are established in a planning document that is endorsed and regularly reviewed by the National Security Committee of Cabinet.
Further information can be found on the Australian Secret Intelligence Service website.
Alfred Deakin Brookes, the founding Director-General of ASIS, died on 19 June 2005, at the age of 85.
In mid-1950, Mr Brookes persuaded the government of the day of the utility of establishing an organisation, modelled on the United Kingdom’s Secret Intelligence Service (also known as MI6). The government agreed and the resulting organisation, ASIS, was established in May 1952.
Mr Brookes served as the head of ASIS from its inception until the completion of his five year appointment in 1957, following which he left public employment for the private sector.
Queen’s birthday honours
The Director-General of ASIS, Mr David Irvine, was made an Officer of the Order of Australia, in the Queen’s birthday honours list which was announced on 13 June 2005.
Mr Irvine, who enjoyed a long diplomatic career with the Department of Foreign Affairs and Trade before being appointed Director-General of ASIS in February 2003, received his award 'for service to furthering Australian international interests and the development of trade link, particularly in negotiating a bilateral agreement with China for the supply of energy.”
Weapons and/or self-defence
In last year’s annual report I wrote of the passage through parliament of amendments to the ISA that aimed to afford greater protection to ASIS persons overseas, through the provision of, training in, and use of, weapons and/or self-defence techniques, for protection purposes only 13 .
ASIS actively consulted Commonwealth agencies which have practical experience in the handling, storage and use of weapons and self defence techniques, in the development of the guidelines required by Schedule 2 of the ISA. I was also consulted in this process, which continued into this reporting period. I made suggestions for improvements to the draft guidelines before they were finalised and my suggestions were all accepted.
In the period since the guidelines have been finalised, I have taken a close interest in their implementation.
ASIS is required by clause 1(5) of Schedule 2 of the ISA to provide the IGIS with copies of all approvals issued by the Minister of Foreign Affairs in respect of training in the use of a weapon or in self-defence techniques or the provision of a weapon.
I had visibility of all such approvals granted both through the regular examination of each submission made by the Director-General of ASIS to the Minister for Foreign Affairs, and the copying to me of each approval which specifically dealt with weapons and/or self-defence.
It is not possible in a public report to provide details of these approvals, however, I can report that the number of persons who were approved to receive weapons and/or self-defence training during the reporting period was very small, and that an even smaller number than this were authorised to carry/ use weapons and/or self-defence techniques when they were deployed in certain situations.
The training afforded to the above cohort appeared to be comprehensive and appropriate, and the cases put to the Minister for approval were soundly based given the circumstances in which the officers in question were to be deployed.
I will continue to monitor approvals given under Schedule 2 of the ISA closely in the coming reporting period.
ISA immunity provisions
In recent IGIS annual reports, both my predecessor and I have made specific reference to the immunity provisions (section 14) of the ISA.
Section 14 provides that a staffmember of ASIS or DSD is not subject to civil or criminal liability for certain acts that might otherwise attract liability, provided that the act is done in the proper performance of a function of that agency. A further provision of section 14 empowers the Inspector-General to certify in writing facts relevant to whether an act was done in the proper performance of the agency’s functions.
Following the enactment of the ISA, protocols were drafted so that in the event of any claim for immunity under the legislation, consultation with the Inspector-General and consideration by law enforcement agencies could be more easily facilitated.
Protocols have been signed with all police services except two. Despite the best efforts of ASIS and the Attorney-General’s Department this situation did not change during the reporting period.
While it is true that the immunity provisions can operate regardless of whether protocols are in place, and also that the provisions have not been invoked since the Act came into being, one would hope it is not beyond our federal system to achieve a common approach.
ISLA Bill 2005
As discussed in ‘The Year in Review’ chapter, a Bill is presently before parliament which, if passed, will further amend the ISA.
The majority of the proposed amendments contained in the ISLA Bill spring from recommendations contained in the Flood Review, or suggestions made to the review of the ISA which was conducted by DPMC.
Given that ASIS has operated successfully within the framework established for it by the ISA, the proposed changes in respect of the Service are not extensive.
The inspection activities carried out by this office in respect of ASIS are:
- monitoring compliance with the ASIS privacy rules
- reviewing all submissions, including requests for ministerial authorisations, made by ASIS to the Minister, and
- inspecting current operational files.
The agreed arrangement is that following each inspection activity I write to the Director-General reporting the results of our reviews and outlining any issues raised during these inspections.
It has also been agreed that where appropriate I will bring to the attention of the Minister for Foreign Affairs or the Prime Minister any matter arising from an inspection that warrants such attention. I am pleased to advise that no such matters arose during the reporting period.
The ASIS privacy rules required by section 15(1) of the ISA, were published at Annex 4 of the IGIS Annual Report for 2001–02, and can also be accessed on the ASIS website (http://www.asis.gov.au/rules_to_privacy.html).
One of the major ASIS inspection activities of my office is review of ASIS’s reporting and other communications for references to Australian persons, and judging whether these references comply with the requirements of the ISA (in terms of collection) and the privacy rules (in respect of reporting and dissemination).
There is no prohibition on ASIS referring to Australian persons in their reporting, but there is a requirement that any such reporting be justified against strict criteria which are spelt out in the privacy rules.
As indicated in last year’s annual report, my office temporarily stopped reviewing ASIS’s internal processing of these reports (but not the reports themselves) due to differing perspectives on the utility of the records being kept. My intention was to resume these wider examinations following the development of clearer internal guidelines informing ASIS’s reporting staffhow the privacy rules should be applied, as well as providing guidance on how the related ‘IGIS audit’ coversheets should be prepared for consideration by this office.
My office worked closely with ASIS in the development of these revised internal guidelines and I endorsed a final draft in September 2004, prior to their issue and circulation to relevant ASIS staffin October 2004.
Following the distribution of these internal guidelines, review of the internal processing has recommenced. In practice this means that my office receives hard copies of each of these reports and their accompanying audit cover sheets bundled together every two weeks or so. The contents are reviewed and comments/observations provided to relevant senior managers within ASIS.
Approximately every two months members of my staffand I meet with senior reporting staff/ intelligence coordinators and discuss issues arising out of the rolling reviews. These round-table meetings are a very useful mechanism for me to raise any issues of concern, and in turn, to have issues of interest or concern to relevant ASIS staffbrought directly to my attention.
Although a number of quality control issues were identified in the initial material reviewed following the full resumption of this review activity, these generally ﬂowed from a conservative approach to applying the privacy rules by some ASIS staff, rather than the obverse.
The proportion of ASIS reporting (and other, less formal communications) which contains any reference to Australian persons is very small, when measured against the full range of reports which ASIS issues and/or distributes.
Another significant change wrought by the ISA was the creation of a formal process whereby the Minister for Foreign Affairs, rather than the Director-General of ASIS, was empowered to authorise certain of ASIS’s activities (eg. entering into formal relationships with foreign liaisons, opening or closing ASIS stations, approving any activities carried out for the purpose of collecting intelligence on Australian persons etc.)
Given that ASIS is a foreign intelligence collector there are very few instances where ASIS seeks ministerial authorisation to deliberately collect intelligence information on Australian persons.
My office reviews all ministerial authorisations, and I am satisfied on the basis of these inspections that ASIS only seeks approval to collect intelligence information on Australian persons where there is a sound basis for doing so, and that the submissions referred to the Minister contain sufficient detail for well informed decisions to be made.
In addition to reviewing all requests which are put by ASIS to the Minister for Foreign Affairs to authorise particular activities, I also have access to, and review, all other submissions which the Director-General puts to the Minister.
My purpose in reviewing this material is so that I might place the Service’s ministerial authorisation requests within the context of the full range of ASIS’s operational activities.
As a consequence of reviewing ASIS’s ministerial submissions, I have sought oral and written briefings from the Director-General on a range of subjects.
These briefings included but were not limited to subjects such as ASIS’s internal and operational audit functions, foreign liaison arrangements, joint operational activities, and internal administrative arrangements.
Review of operations
A member of my staff and I devote approximately four person days per month to visiting ASIS headquarters and reviewing current operational files. The purpose of this review activity is to monitor whether ASIS’s operations are being conducted with legality and with propriety.
This review activity naturally has a retrospective focus as I subscribe to the view that it is not the proper place of the IGIS to second-guess operational decisions as they occur, or attempt to manage operational matters at one remove.
During the reporting period, a thematic approach to the files selected for examination was taken, rather than reviewing a random selection of files across several subject areas.
For the most part, the operational cases reviewed in 2004–05 were well planned and run, and delivered outcomes that were consistent with ASIS’s charter. Notwithstanding this generally positive assessment, the review of these files did prompt me to raise a number of issues with the Director-General.
As ASIS’s on-the-ground operational activities are among some of its most sensitive work it is not possible to provide details.
The Director-General has provided written replies in all instances where we have required a response, or offered briefings by key staff, and I was satisfied with these responses and briefings.
Use of assumed identities
Section 15XUA of the Crimes Act 1914 requires ASIS to, as soon as practicable after 30 June each year, provide the IGIS with a report for the preceding 12 months on:
- the number of instances in which formal alternative identity documentation has been obtained
- a general description of the activities undertaken by approved officers and approved persons when using their assumed identities, and
- whether or not any fraud or other unlawful activity was identified by the agency when auditing use of the assumed identity documentation.
My office had visibility of matters associated with the use of alternate forms of identity documentation through the various inspection and review activities, and the specific briefings sought and received.
The advice provided to this office by ASIS for the reporting period confirmed that no evidence of fraud or any other unlawful activity had been detected.
Contact with staff
I met with a significant number of ASIS officers prior to their overseas postings. The purpose of these meetings is to remind ASIS representatives of the role and functions of this office and the expectations of their behaviour.
I also met with heads of mission who are being sent to posts where ASIS staffare present, to discuss any issues they might have prior to their departure.
These meetings are an important means of reinforcing with ASIS personnel that their actions are subject to on-going external scrutiny no matter where they are posted, and that they are obliged to conduct themselves in an appropriate manner at all times.
In addition to these pre-departure meetings, members of my staffand I regularly attend training sessions for ASIS officers and inductees, addressing them on accountability issues and the work of the office.
I increased my exposure to ASIS staffcompared to last year by attending several residentially based training sessions, meeting with each intake of trainee intelligence officers, and by presenting regularly at the newly commenced AIC common induction course, which has a number of positions reserved for ASIS staff .
Complaints and Inquiries
One incomplete ‘own-motion’ inquiry into ASIS was carried over this reporting period. This inquiry was concluded in November 2004.
I received one complaint about ASIS which led to a preliminary inquiry, and I initiated a preliminary inquiry into one matter potentially involving ASIS.
In addition to these matters three persons contacted OIGIS with queries or concerns about ASIS which were handled administratively (ie without need for formal inquiry action).
The own-motion inquiry and one of the preliminary inquiries are described below. The other preliminary inquiry has been covered in the ASIO chapter.
Own motion inquiry
In November 2003 my predecessor, Mr Blick, initiated an own motion inquiry into ASIS’s handling of a human resource management matter involving allegations of harassment and intimidation, alleged misconduct and the alleged provision of misleading statements to achieve a particular outcome.
Mr Blick was unable to conclude his consideration of this matter prior to his retirement in March 2004. I took carriage of this matter upon my appointment, and ultimately concluded the investigation in November 2004.
Despite repeatedly seeking further information from an individual in respect of the allegations of misconduct and the provision of misleading statements, the information I required was not forthcoming. I therefore did not formally inquire into those particular allegations.
After considering all of the available material relating to the other matters I concluded that:
- there was no evidence of systematic intimidation or harassment as alleged
- the instances nominated as evidencing intimidation or harassment did not constitute such behaviour, and
- ASIS management had dealt with the matter in a proper manner.
Recruitment related complaint
ASIS, as with the other members of the intelligence community, has received a significant boost to its budget in recent years. Much of this additional funding has been used to recruit new staff. Given the rate at which the AIC has been expanding the number of recruitment related complaints received by this office has been, and remains, very small.
This office received one recruitment related complaint about ASIS during the reporting period, compared to three in the previous reporting period.
In the case in question, an unsuccessful applicant for a position with the Service alleged that there were ﬂaws in the interview process.
Upon investigating this matter, I was satisfied that the selection panel was appropriately composed. I found no evidence that the complainant was treated discourteously or differently from other candidates, and in consequence did not support the complainant’s request to be re-interviewed.