Australian Security Intelligence Organisation

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 can’t be obtained by other means and 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.

Senior appointment

The Prime Minister announced the selection of Mr Paul O’Sullivan to replace Mr Dennis Richardson AO as the Director-General of Security, on 10 July 2005.

Mr O’Sullivan, in an opening address to an intelligence community induction course, has stated that:

“As an intelligence community, we need continually to earn the trust and confidence of the government, the parliament and the community. It is therefore imperative that we continue to maintain the high standards of transparency and accountability that already exist in the AIC and use the powers granted to us under legislation appropriately, in strict conformance with the law.”¹⁸

I am satisfied, based on my interactions with Mr O’Sullivan, and the various inspection activities my office has undertaken within ASIO over the past 12 months, that these are genuinely held views which find expression in the day-to-day activities of ASIO.

Significant issues

Growth and expansion

As indicated in ‘The Year in Review’ chapter, the current global and domestic security environment is volatile and demanding.

The Government engaged a former Director-General of ASIS, Mr Allan Taylor AM, to conduct a comprehensive review of the adequacy of ASIO’s resources to perform the functions required of it.

On 16 October 2005, the Attorney-General, the Hon. Philip Ruddock MP, announced a five-year strategic plan to respond to the many and various challenges identified in Mr Taylor’s report.¹⁹

Under this five-year plan the Attorney-General indicated that significant additional funding would be provided to ASIO to improve capability to protect people, places, critical infrastructure and special events within Australia, and Australian interests overseas, including by:

effectively doubling staffing levels from 980 as at October 2005, to 1860 positions by the end of the 2010–11 reporting period
enhancing intelligence collection and assessment capability
increasing surveillance capability, and
upgrading information technology systems to assist with investigations and cope with the increased volume of intelligence being developed and exchanged internationally.

When the Federal Budget was handed down in May 2006, ASIO received substantial additional funds²⁰ as part of the five year strategic plan announced by the Attorney-General in October 2005.

In principle approval was also provided for a new building to be constructed in Canberra to accommodate an expanding ASIO central office. As per existing arrangements, the new building will be co-tenanted by ONA.

Entry and search warrants

Immediately prior to and during the early part of the 2005–06 reporting period, the media gave prominence to a number of ASIO entry and search warrants which were executed with the assistance of federal and state-based law enforcement bodies. These media reports included a significant amount of material which purported to be about the execution of one of the warrants and counter-terrorism investigations.

One reported comment by a lawyer suggested that because of the effect of recently enacted amendments to the ASIO Act, the subjects of the executed warrants were not in a position to properly scrutinise or defend themselves against various claims which he asserted had been made public without proper authority.²¹

Part of this assertion appears to have been borne out of confusion concerning the applicability, or otherwise, of (what was then) section 34VAA of the ASIO Act.

Broadly speaking that section (now 34ZS) makes it an offence for a person to disclose information about an ASIO questioning warrant or questioning and detention warrant, unless the disclosure is expressly permitted, or the disclosure occurs after certain specified periods.

There are no such secrecy limitations on any of the other categories of special powers warrants which ASIO may obtain, including entry and search warrants, under the ASIO Act (although, naturally, if a warrant is successfully executed covertly the subject’s capacity to provide public comment is negligible). For completeness I should also mention that telecommunications interception warrants are obtained under the Telecommunications (Interception and Access) Act 1979 (TIA Act) and there are secrecy provisions which apply, but again it would be most unusual for the subject of a warrant to know interception was occurring.

The lawyer subsequently acknowledged the distinction between these different types of warrants but notwithstanding this, still called for an investigation into how certain information entered into the public domain.²²

Concerns about this were an element of some of the complaints I received as a result of the warrant activity. These complaints bridged the 2004–05 and 2005–06 reporting periods.

These complaints tended to fall into two categories, the first of which comprised complaints made by individuals who were directly affected by the execution of the entry and search warrants and were primarily concerned with the return of seized goods and property.

As discussed in ‘The Year in Review’ chapter of this report, complaints about return of goods were handled administratively with relevant senior ASIO managers rather than by formal inquiry action.

While not all of the requests made to my office could, or should, have been actioned immediately, I found that where the seized items were within ASIO’s direct control and no longer required by them, the ASIO managers I dealt with were properly responsive.

Items which complainants specifically requested be returned as a priority were, where possible, returned by ASIO in what I considered to be as timely a manner as possible.

The second category of complaints were levied by legal representatives acting on behalf of the subjects of the warrants, and/or by concerned individuals/community groups. Complaints in this category 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, and
whether the alleged unauthorised disclosure of information had been orchestrated to deliberately prejudice the interests of the subjects of the warrants.

I made preliminary inquiries which included personally reviewing relevant ASIO files and warrant documentation, and also obtaining various assurances from the Director-General of Security. I was satisfied that:

the arguments mounted in support of obtaining the warrants were properly detailed
all of the tests and requirements for the issue of entry and search warrants under section 25 of the ASIO Act had been fully met
no ASIO officer had been authorised to provide information to the media, or to speak to the media, on any matter relating to the execution of the warrants, and
ASIO did not authorise the AFP or the State police involved to provide any information to the media concerning the investigation, or which would enable the subjects of the warrants and/or the locations where the warrants were to be executed to be identified.

I concluded my preliminary inquiries into these matters by August 2005. At that time I did not investigate whether there was any unauthorised contact by an ASIO officer with the media because I was aware that ASIO (and other agencies concerned)²³, were conducting their own parallel internal investigations.

Since then I have sought and obtained access to the records of that ASIO investigation. The conclusion reached by the investigation was that there was no indication that any leak originated from within ASIO. Having examined the records personally, I am satisfied that the ASIO investigation was conducted thoroughly and professionally and I saw no reason to question the conclusion reached.

In November 2005 there was again substantial media coverage about the overt execution of a number of new entry and search warrants. While ASIO played a part in some of these activities, in almost all instances the warrants in question had been obtained by law enforcement agencies, rather than by ASIO.

I subsequently received several complaints from persons who had a direct or personal interest in these matters, seeking the return of seized goods or complaining about the conduct of police personnel.

As the issues raised by these complainants related to police warrants and no issues were raised about the conduct of ASIO personnel, I did not have jurisdiction to pursue these matters. This being so, these complaints and concerns were referred to relevant complaints bodies with the authority to consider issues of this kind.

Questioning and detention warrants

As detailed in the ‘Legislative Review’ chapter of this report, the ASIO Act was amended during the reporting period to, among other things, extend the questioning and detention powers provided to ASIO by Division 3 of Part III of the ASIO Act until 22 July 2016.

The ASIO Act states that the IGIS, or an APS employee assisting the IGIS, may be present at the questioning or taking into custody of a person under Division 3 of Part III of the ASIO Act.

Although there are limitations on what I can say in respect of these warrants (in terms of what does or does not constitute a permitted disclosure), I am able to reveal that I or one of my staff was present on all occasions when these powers were used during the reporting period.

Apart from raising one procedural issue (which was addressed promptly and satisfactorily), we found no issues of concern.

Section 94 of the ASIO Act requires the Director-General of Security to include in the ASIO annual report details of the number of questioning warrants and/or questioning and detention warrants issued during each year, as well as other related information.

Readers seeking additional information on the number and duration of such warrants executed during the reporting period are referred to the ASIO annual report.

Legal proceedings involving ASIO

There were a significant number of civil and criminal legal actions during 2005–06 in which ASIO had either a direct involvement or an otherwise significant interest.

On the criminal side, ASIO’s cooperative working relationship with law enforcement agencies in a number of joint investigations contributed to terrorism related charges being laid against a number of Australians.

Since November 2005 a total of 22 persons of interest have been arrested in Sydney and Melbourne. Each of these persons has been remanded in custody pending the outcome of various legal proceedings. These proceedings were still in train at the conclusion of the reporting period.

The IGIS does not have a role to play in deciding or reviewing which matters are prosecuted. This is rightly the preserve of the Director of Public Prosecutions in consultation with relevant law enforcement agencies. I do, however, have an interest in any court action in which ASIO is a player, so that I might be kept properly informed of any issues relating to the lawfulness, conduct and propriety of ASIO as an organisation, and individual representatives of ASIO. To this end, I periodically seek briefings on the progress of particular matters.

ASIO also found itself in the position of being the defendant in some well publicised civil actions during 2005–06.

Some of the individuals bringing civil proceedings against ASIO have formerly been complainants to my office and have said so publicly. Others have made representations to my office and as is their prerogative, choose not to make this fact public. Of course, others will seek a civil remedy against ASIO without having contacted my office at all.

While I am hopeful that individuals with a grievance or concern about ASIO will approach me in the first instance rather than initiate legal proceedings, any such decision rightly remains with the plaintiff/complainant.

Payment of compensation

In the IGIS annual report for 2002–2003 my predecessor reported on an inquiry he had conducted into the execution of a number of entry and search warrants by ASIO. In one instance an unintentional error led to ASIO officers entering and beginning to search premises which were not those specified in the warrant. My predecessor had recommended that compensation be paid.

In November 2005 a confidential settlement was reached and compensation paid to the complainant.

Special briefings

In the course of my office’s inspection work and through conducting inquiries, presenting at training courses, meeting staff and monitoring the media, I sometimes become aware of issues concerning ASIO on which it would be useful for me to receive a briefing from ASIO.

On those occasions when I require a special briefing on a particular subject I will either write to the Director-General of Security requesting one, or if the issue is more pressing, directly contact the relevant senior manager.

Mr O’Sullivan has (properly) not placed any restrictions on who I might seek briefings from, or to whom I might speak within ASIO, and indeed, has encouraged his staff to proactively brief me on some issues.

During 2005–06 I received briefings on a range of subjects including, but not limited to, the processing of immigration related security checking processes, a review of some aspects of staff recruitment processes, the Taylor review and ASIO’s planned expansion, airport security issues, issues associated with the protection of classified material in court proceedings, and specific employment and operations related issues.

I should express my appreciation for the significant efforts ASIO staff have gone to in providing briefings for my office.

Training

I consider it important for my office to be visible to as wide a cross-section of ASIO staff as possible. This is achieved not only through our scheduled visits and inspection program which takes us to every ASIO office in Australia on a regular basis, but also through accepting invitations to present at, observe, and/or participate in as many ASIO training courses as is feasible.

During 2005–06 I met with ASIO’s intelligence officer trainees during their induction week and delivered a presentation on the role and functions of my office. Two of my staff observed several training exercises involving this group and interacted with them, and I also participated in a different training exercise.

The purpose of the above activities was to reinforce that accountability is an integral part of any intelligence career, but also to put a human face on the activities of our office. I would like all new starters joining the AIC to feel that my staff and I are approachable should they wish to raise any matter within my remit.

In addition to the above I personally presented at four in-house training courses run by ASIO on the subject of ethics and accountability, and also addressed a significant number of ASIO staff while presenting at various AIC induction courses throughout the year.

Inspection activities

Scope and reporting

Due to its strong domestic security focus ASIO is the AIC agency which is most likely to directly interact with members of the Australian public. It is therefore appropriate 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.

I advised in last year’s annual report that since becoming Inspector-General, I had increased the frequency of visits to ASIO’s central office and to its various state collection offices to match the increasing operational tempo of ASIO.

During 2005–06 my staff and I conducted 48 inspection visits to ASIO’s various offices compared to 36 separate inspections in the previous reporting period. This increase has arisen from a decision on my part to increase the frequency with which we visit ASIO’s major offices outside of Canberra, and to also increase the frequency with which we review some activities which are largely managed in ASIO’s central office (these inspection activities are discussed in more detail later).

Given the increasing numbers of ASIO staff, combined with the increased operational tempo of ASIO, we have found the time taken to complete our inspection visits has grown longer. In response we have increased the duration of our visits and in some cases, the number of staff who undertake particular inspections.

I write to the Director-General of Security with a summary of findings following each inspection undertaken by my office.

The Director-General usually responds to these letters in a timely and considered manner. Generally the points made are accepted and acted on, although there is sometimes further dialogue on the issues raised. I do not expect the Director-General to accept my comments without question or comment and indeed am more than happy to engage in such discussion.

Operations advisers

In order to encourage and reinforce good practice ASIO has suitably experienced and respected individuals from within its own ranks serve as operations advisers.

The functions of the operations advisers include reviewing operational case files from a quality control perspective, offering guidance to case officers based on their own knowledge and experience, and acting as a sounding board to more senior officers.

I place great store on the work of the operations advisers, and my staff and I frequently interact with them during or various inspections and visits. They serve as a point of contact on policy and procedural issues. I have been appreciative of the high quality work they have done.

Range of inspection activities

During 2005–06 this office inspected records associated with a wide range of ASIO activities including warrant operations, authorities to investigate, access to sensitive financial records, use of assumed identities and liaison with law enforcement agencies.

Details of the outcome of our inspection activities in respect of these categories are briefly summarised below.

Warrant operations – powers

ASIO has access to a range of special powers to assist it to perform the functions set down 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 Part 2-2 of Chapter 2 of the TIA Act.

The Attorney-General is the issuing authority for all special powers warrants, with the exception of questioning and questioning and detention warrants issued under (now) sections 34E and 34G of the ASIO Act.

In the case of sections 34E and 34G warrants the Director-General of Security must first obtain the consent of the Attorney-General to proceed, before seeking such a warrant from an issuing authority (who is ordinarily a Federal magistrate).

The use of a questioning or questioning and detention warrant is, however, very limited. This is because the legislation requires that a questioning or questioning and detention warrant can only be sought if “relying on other methods of collecting that intelligence would be ineffective.”

My staff and I aim to inspect the files associated with every warrant which is issued to ASIO. We do so in order to be satisfied that:

intelligence or security case that ASIO has made in support of the application is soundly based and all the legislative requirements are met
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 who may execute the warrant, or communicate information obtained from the warrant
appropriate certifications or approvals external to ASIO have been obtained (eg the Attorney-General, and in the case of s34E and s34G warrants, the issuing authority)
reports to the Attorney-General on the outcome of executed warrants are factual and provided in a timely manner, and
the activity concerned did not begin before, or continue after, the period approved.

Warrant procedures

The special powers available to ASIO to obtain intelligence information can be very intrusive, and are only considered when other means of obtaining information are not available.

In those cases where it is decided that the best way ahead is to obtain a special powers warrant, ASIO must:

coordinate the preparation of the submission which is ultimately to be put to the Attorney-General
ensure that all of the information which is put forward is double-checked and as accurate as possible
advise relevant functional areas when a warrant has been endorsed, so that they might initiate or continue collection activities
monitor and respond to any issues which arise while the warrant is active
coordinate and develop reports to the Attorney-General on the utility of each warrant to the Organisation, and
commence the process again, should it be decided to renew a warrant.

ASIO has increased the level of resources dedicated to the warrant process in response to the increase in the operational tempo.

I have been impressed by the excellent quality of the documentation done by the relevant staff, and their capacity to turn around large volumes of work quickly.

I should also note the willingness of ASIO to proactively bring to my attention instances where mistakes have occurred, and to respond constructively to issues which my office raises.

Outcome of warrant inspections

ASIO’s warrant operations are naturally highly classified. As a consequence, while we have tried to fairly reflect the outcomes of our inspection activities, some details cannot be included.

On the positive side of the ledger I can report that in each case where a warrant was issued in 2005–06 we were satisfied that ASIO had:

reasonable and sufficient grounds for seeking the warrant
provided sufficient information for the Attorney-General (or the issuing authority in the case of s34E 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 and timely manner, and
maintained the key accountability documents on the relevant files for examination by OIGIS staff.

Unauthorised telecommunication interception

During 2005–06 my office either identified, or had brought to its attention by ASIO, three instances where an inadvertent error or fault within ASIO’s control led to unauthorised telecommunications interceptions occurring.

Separately to the above my staff identified, or had brought to their attention, 10 other instances where technical or human error within ASIO’s control had the potential to cause unauthorised collection to occur, but such collection did not eventuate.

Details relating to persons who are the subject of ASIO special powers warrants are subjected to rigorous checking, prior to, during and following the execution of telecommunications warrants.

Notwithstanding the rigour with which this checking occurs, some operations are very technical in nature and complex to manage.

Of those cases where errors were identified which were within ASIO’s control, the majority were the product of transcription errors.

In most of these cases no harm was done because the “corrupted” addresses and “wrong” phone numbers did not exist and, in consequence, no data was available to be intercepted.

In one instance an already disconnected telecommunications service was listed in a warrant and placed on cover until such time as the absence of any product was queried. Had that service been reallocated in the interim, it is possible that data could have been collected on somebody totally unconnected to the subject of the warrant.

In two instances a service provider was provided with wrong advice on warrant expiry dates. This advice was calculated on the maximum period available under a warrant of this kind (ie. 180 days), rather than the period actually specified in the relevant warrants (which was a lesser period, so that these warrants had a common expiry date with several other related warrants). Unauthorised collection did not arise out of these errors, but the potential existed for this to happen.

Some of the instances noted were ones where minor human or technical errors elsewhere in ASIO had an adverse impact upon the lawfulness of the activity.

In one of the three cases of actual unauthorised interception, a technical officer had incorrectly entered an expiry date which was five years after the date a particular warrant was signed, rather than the maximum six months allowed for.

The insertion of this wrong expiry date was not identified until several days after the warrant had actually expired, when an alert officer queried why product was still being received. Information collected in the short period between the expiry of the warrant and when it was noticed that collection was still occurring, was immediately purged from the system and a full report of what had occurred provided to me.

We suggested that so as to avert similar problems in the future, an adjustment should be made to the interception management system concerned, so that no expiry date could be inserted which was in excess of 180 days. I have been advised that this is in the process of being implemented.

In addition to the above cases we also identified, or had brought to our attention, five instances where the actions of bodies external to ASIO resulted in, or could potentially have resulted in, unauthorised collection occurring. These cases appeared to be either the product of technical failure or human error.

In all those instances where failures led to unauthorised collection (either by ASIO or an external body), the intercepted data was destroyed and in the case of technical failure, appropriate solutions were identified by ASIO and adopted.

Interception management systems

As an additional form of scrutiny, my staff and I periodically interrogate ASIO’s interception management systems. This is 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.

These checks revealed three instances where incorrect expiry dates had been entered. Each error was identified and remedied before the correct expiry date had passed meaning that there was no prospect (in those instances at least) of collection occurring beyond the correct expiry date. I reminded the Director-General of Security and the work area concerned of the imperative nature of ensuring such records are accurate.

Apart from the issue of the accuracy of input expiry dates, I am pleased to advise that none of the checks we conducted revealed any instances of inappropriate or otherwise unauthorised collection.

Timeliness of reporting on warrant outcomes

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 TIA Act, which requires the Director-General of Security to furnish reports of telecommunications interception (TI) related warrants within three months of their expiry or revocation.

There is no statutory deadline for the preparation of reports on the outcome of other, non-TI special powers warrants, but the approach adopted is that, except in exceptional circumstances, they too should be produced within 90 days of the expiry of a warrant.

ASIO’s performance in this respect improved from that in 2004–05²⁴, and I am satisfied that appropriate timeliness is being achieved.

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 an authority to investigate.

The initial process involves the formal identification of the person or organisation to be investigated and proposes the level of the investigation, and the objectives, nature and duration of the investigation.

The work classification level within ASIO at which an authority 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 every authority which is issued during each reporting period. In previous years this could be achieved by reviewing relevant files in ASIO’s central office every two months, and reviewing relevant files in each of ASIO’s interstate offices at least annually. Due to increased numbers I increased the frequency of our inspections for this purpose from 19 visits in 2004–05 to 25 visits in 2005–06.

During these inspections we checked to see:

whether there were reasonable grounds for the request
whether the level of the authority was appropriate for the proposed investigative activities
if the proposed duration of the approval was appropriate or excessive
what limits, if any, had been placed on the investigative activity, and whether these were 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 had been placed on file.

Authorities to investigate – inspection results

As with warrant operations, detailed public discussion of specific cases is not possible but some general comments can be made on the issues we noted in the course of our inspection activities.

So as to encourage improvement in standards and consistency in approach, we have actively looked for and cited examples of good practice, in addition to our more usual functions of raising queries and identifying errors.

Our inspections showed that most requests were completed to a high standard. This suggests that the policy upon which the process is based is understood, accepted and being regularly put into practice. It also speaks well of the training being given to staff.

There were some instances where more guidance could have been provided by more senior staff and this was brought to the attention of the relevant officers. We also identified a number of instances where ASIO’s internal policy requirement that warrant operations be supported by a current authority had not been fully met.

ASIO has introduced appropriate internal monitoring and review mechanisms in an effort to minimise the incidence of this occurring.

ASIO is required, under the Attorney-General’s guidelines for obtaining intelligence relevant to security, to periodically review authorities to investigate.

While compliance with this requirement was generally good, we noted several instances where reviews had not been completed within a reasonable timeframe.

We also noted several instances of minor procedural defects (e.g. where expiry dates have not been properly inserted, the creation of duplicate authorities, and instances where some relevant supporting documentation was not on file) but these were very much the exception and did not point to any systemic concerns.

Overall I was pleased with the quality of the authorities we reviewed and am confident that, with the assistance of the operations advisers, standards will be enhanced further.

ASIO and law enforcement agencies

The continuing focus on counter terrorism during the reporting period necessarily involved close cooperation between ASIO and various law enforcement agencies.

Whenever we visit any of ASIO’s state offices we examine the files which detail their interactions with locally based law enforcement agencies. In reviewing these files we paid particular attention to the passage of information on persons of security interest to law enforcement agencies.

On the basis of our review of this material, I am satisfied that ASIO’s state-based managers aim to be as genuinely cooperative as they can with local law enforcement, without going beyond the limitations imposed by the ASIO Act.

I am also satisfied that appropriate control measures exist to ensure that personal information on persons of security interest is only exchanged where there is a demonstrable need for this to occur.

Information obtained from AUSTRAC and the ATO

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 (ATO), in strictly prescribed circumstances.

The procedures involved in ASIO accessing financial transaction reports and taxation information are set out in Memorandums of Understanding (MOU) between the respective parties.

The IGIS and the Director of AUSTRAC have also entered into an 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, and expect to issue a similar certificate for 2005–06, early in the 2006–07 reporting period.

During 2005–06 my staff conducted six AUSTRAC related inspections at ASIO’s central office, and also reviewed relevant records in ASIO state offices whenever the opportunity presented itself.

In the course of the inspections we identified a number of minor procedural issues which have been brought to the attention of relevant officers for appropriate remedial action.

My staff and I also engaged in discussions with AUSTRAC regarding the development of an electronic template which we hope will make our inspection tasks more efficient in the future.

I am pleased to say that the improvement we noted in last year’s annual report in the quality of requests for AUSTRAC checking was carried over into 2005–06.

In addition to having access to FTR information, ASIO also has access to taxation records in strictly prescribed circumstances.

Although ASIO accesses tax information relatively infrequently, it can still be a useful tool in developing an understanding of the activities of persons of security interest.

On the basis of our review activities I am satisfied that ASIO is complying with the requirements of the MOU between itself and the ATO.

Use of assumed identities

Another regular inspection activity undertaken by my office is the periodic review of ASIO’s assumed identity registers.

These registers record all instances where an assumed identity has been officially allocated to an ASIO officer for operational purposes, details what documentation has been obtained to support that identity, sets out what limitations have been imposed on the use of the identity, identifies who has authorised the use of the identity, and also details any variations which have been authorised following the original issuing of an assumed identity.

In 2004–05 we conducted four inspections of the assumed identity registers but I reduced this to two inspections in 2005–06. During those inspections we reviewed approximately 10% of all authorisations, variations and revocations which had been processed during the reporting period.

I chose to reduce the number of inspections we conduct as the checking we undertook essentially replicated work already being undertaken by ASIO’s internal auditor. I also was of the view that in the time we had been actively reviewing the registers we had found nothing which caused us any significant concern.

Towards the later part of the reporting period I had a detailed discussion with relevant ASIO staff on the controls applied in this work by ASIO and whether there were options for my office reviewing this activity in a different manner.

I was satisfied, based on these discussions, that the authorisation, allocation and use of assumed identities by ASIO staff is very tightly controlled, and that adequate internal checking and review mechanisms exist to ensure that allocated assumed identities are not being misused or abused.

As I identified nothing further or new my office should be doing, we will continue to review a sample of ASIO’s assumed identity registers on an occasional basis.

Complaints and inquiries

As at the end of 2004–05, five full or preliminary inquiries into complaints about ASIO were still open and carried over into 2005–06. Each of these inquiries was finalised early in the 2005–06 reporting period.

The office conducted preliminary inquiries into 11 new complaints about ASIO (compared to 23 in 2004–05), and initiated full inquiries into three new matters (four in 2004–05).

The office received 71 other complaints about ASIO, from individuals seeking to reopen former complaints, or making new complaints raising specific concerns about ASIO (compared to 50 in 2004–05). These complaints/requests were handled administratively rather than as preliminary or full inquiries.

I should note that seven of the 71 complaints were about one issue (the security assessment made in respect of Mr Scott Parkin—see later in this chapter).

Around 40% of the complaints were concerned with the timeliness with which ASIO processed immigration related security checks. My handling of these complaints is discussed below, followed by brief summaries of several other complaints I addressed during 2005–06.

Immigration related complaints

In the 2004–05 reporting period I received 31 complaints concerning the timeliness with which ASIO was processing security assessments for Permanent Protection Visa (PPV) applicants. Of these 31 complaints I handled 14 as preliminary inquiries and 17 were handled administratively. The majority of these complaints were lodged by migration agents acting on behalf of PPV applicants²⁵.

Towards the end of 2004–05 the Prime Minister announced that the government was committed to the more timely resolution of PPV applications and that in addition to making more resources available to relevant agencies, a 90 day deadline for primary decisions on PPV cases was also to be introduced.²⁶

Following this announcement significant resources were allocated to and within ASIO to ensure the timely processing of security assessments for PPV applicants. This has resulted in clearance of much of the backlog and the majority of non-complex matters being finalised within the specified timeframe.

Despite there now being a substantial decrease in the backlog of outstanding PPV applications to be processed, the number of complaints made to my office during 2005–06 remained at a level similar to that of 2004–05. Of the 32 complaints in 2005–06, I handled 26 administratively, and six were pursued as preliminary inquiries.

Handling a matter administratively means that I ask my staff to make informal inquiries of ASIO to determine the length of time ASIO has had a PPV application and the general nature of the case, and then make a quick judgement as to whether any issues of legality or propriety appear to be involved.

In a small proportion of cases further investigation is warranted, so a preliminary or full inquiry is commenced. In these cases a file review is carried out and, if required, interviews are conduct to determine the nature and extent of the problem.

I have made explicit to ASIO that applications which are the subject of a complaint to my office must not be actioned faster than other applications simply because a complaint has been made. The purpose of this is to not disadvantage other applicants who are waiting their turn in the queue.

I have also made this same point to some of the migration agents who regularly approach my office, who appear to be under the false belief that I or my office have the ability to ‘fast-track’ applications.

In addition to the 32 immigration related complaints I received in 2005–06, I also initiated two full inquiries of my own motion into immigration related matters. I have since suspended both of these inquiries as I understand the persons to whom these inquires relate have commenced court actions in respect of the handling of their applications. These suspensions were necessary because of section 11 of the IGIS Act, which requires that I defer to court proceedings unless there are special reasons to warrant continuing an inquiry.

Migration related security assessment

In April 2006 I received a complaint regarding a delay in the processing of an application for security clearance made on behalf of an applicant for a PPV.

I handled this matter administratively in the first instance, and ascertained that the application had been with ASIO for a substantial period without being finalised.

Notwithstanding that security assessments can, in some instances, be difficult and time consuming matters to progress, the length of the delay in concluding the assessment prompted me to initiate a preliminary inquiry to ascertain the exact reasons for the delay.

In the course of the preliminary inquiry relevant files were accessed and reviewed and we discussed the handling of the case with relevant senior officers.

This inquiry pointed to possible flaws in ASIO’s administrative practices which had contributed to the delay in this security assessment being concluded. ASIO has recently introduced improvements to its management systems to ensure better tracking of such cases, with a view to preventing similar occurrences in the future.

Intelligence officer training

In October 2004 I received a complaint about the intelligence officer (IO) trainee course and related human resource development issues. After giving the matter careful thought, I decided at that time not to conduct an inquiry (essentially because the complainant had other available avenues of appeal which had not been exhausted at that time).

The complainant in this matter subsequently provided me with additional information alleging bullying, partiality in the treatment of trainees, and issues surrounding performance feedback. I then decided to initiate a full inquiry into these matters. This inquiry was still in train at the conclusion of the 2004–05 reporting period but was finalised in the early part of 2005–06.

In the course of my inquiry I met with the complainant twice. I also met with and obtained statements from several individuals I had identified as being in a position to comment, spoke with and/or obtained statements from persons nominated by the complainant, reviewed numerous related documents, and also spoke with various relevant senior ASIO managers.

In my final report I concluded that there was no evidence to suggest that a named trainer, or other training staff, had acted in an aggressive, bullying, rude or unprofessional manner. Indeed, I found evidence suggesting that the contrary was true.

I found that the provision of feedback to trainees could perhaps have been handled better, but suitable steps to address this had already been taken.

I noted that ASIO had already conducted a review of its internal processes relating to trainees, and had set in train various procedural changes and reforms. I endorsed these changes.

While I noted that while there were no major gaps in support mechanisms for trainees, I recommended the additional involvement by specialist support staff with future traineeships.

While the inquiry did not deliver the outcome the complainant desired, I think it served a useful purpose in facilitating genuine consideration and useful debate about the way in which the traineeship course is structured and delivered.

Access to intelligence officer traineeships

Early in 2006 I received a complaint from a member of the public who expressed concern about mandatory entry requirements for applicants for IO trainee positions.

The complainant also raised concerns about the security of applications for such positions which were required to be lodged electronically.

Following a preliminary inquiry into these matters, I was satisfied that there was nothing illegal or improper about the entry requirements specified by ASIO for this scheme, and that it was consistent with similar programs run by other Commonwealth government departments and agencies.

In respect of the second issue, I was satisfied that the issue of security was properly considered and that appropriate security safeguards had been put in place to minimise the risk of inappropriate or unauthorised access to the information in question.

ASIO career information

In the 2001–02 annual report my predecessor detailed an inquiry into a complaint by an individual that information on his earlier career in ASIO had been disclosed to a state police force and contributed to his loss of employment.

In March 2005 I was contacted by a person aggrieved that he was one of several persons against whom the individual was taking civil court proceedings. The person who contacted me had become aware of my predecessor’s inquiry and report through the court proceedings and felt he had been denied natural justice.

I reviewed the papers and after careful consideration concluded that because my predecessor had not fully complied with all of the procedural requirements of the IGIS Act, it would seem that the inquiry report was invalid. I then wrote to three people advising them of this, and asked for their comments on whether I should proceed to make further inquiries into the matter. In particular, I pointed out that section 11 of the IGIS Act requires that the IGIS only inquire, or inquire further, into a matter which is also before the courts or a tribunal if there are “special reasons” for the IGIS to do so.

The responses did not, to my mind, establish that special reasons existed and I therefore decided not to make further inquiries while the matter was before the courts.

Security assessment of Mr Scott Parkin

In early September 2005 a United States citizen, Mr Scott Parkin, was taken into custody in Melbourne on the basis that his temporary visa for entry into Australia had been revoked, and in consequence he would be held in immigration detention pending his removal back to the United States.

Shortly following his arrest, I received a written complaint from a member of the public raising concerns about the role ASIO may have played in these events.

On the basis of this complaint, and having ascertained that ASIO had indeed issued an adverse security assessment in respect of Mr Parkin, I commenced an inquiry under section 15 of the IGIS Act.

My office also received several phone calls and e‑mails from other people expressing concern about Mr Parkin’s alleged mistreatment.

To my mind, the essential matter to be investigated in my inquiry was to determine whether ASIO had acted contrary to requirements of section 17A of the ASIO Act, which requires that ASIO must not act in such a way as to “limit the right of persons to engage in lawful advocacy, protest or dissent”.

In the course of my inquiry I had access to and reviewed relevant ASIO files, and also formally interviewed ASIO officers under oath or affirmation (as provided for under section 18 of the IGIS Act). I also considered open-source material and spoke with the Commissioner of the AFP.

I provided the report of my investigation into this matter to the Attorney-General on 29 November 2005.

The report was in two parts, the first part of which is an unclassified document which I believed could properly be released into the public domain. A copy of my report is provided at Annex 4 of this report.

My main conclusions were that the security assessment of Mr Parkin was based on credible and reliable information and that the necessary legal requirements had been met. There was no evidence or reason to think that the security assessment was influenced from elsewhere within the Australian Government or by external bodies.

Legal representatives of Mr Parkin have subsequently initiated legal action challenging the basis of the security assessment and various matters flowing from the assessment. This action was still in train at the conclusion of the reporting period.

One of Mr Parkin’s legal representatives offered comment on my report when interviewed on the ABC Radio National program “The National Interest” on 11 December 2005. In the course of this interview factually inaccurate comments were made about the pre-requisites for being appointed IGIS.

Specifically, it was said that it has been the practice to appoint retired judges to the position of Inspector-General, in contrast to my background as a public servant.

So that the public record might be accurate, I must point out that none of my four predecessors have held judicial office. All four had been Deputy Secretaries in Commonwealth Departments prior to appointment.

Prior to my appointment as Inspector-General I was a Deputy Secretary in the Commonwealth Attorney-General’s Department, with long experience in public administration at senior levels. My background is very similar to that of my predecessors.

I might also add that when recommending creation of the position of Inspector-General in 1984, Justice R M Hope commented that experience in public administration would be an advantage, and that it would generally not be appropriate that the Inspector-General be a judge (see page 331 of the Royal Commission report on ASIO).

Footnotes
18 Mr Paul O’Sullivan, Director-General of Security, Opening address to AIC induction course, 6 December 2005, available on the Australian Security Intelligence Organisation (accessed on 1 September 2006).
19 The Hon. Philip Ruddock MP, Attorney-General, Media Release 191/2005 dated 16 October 2005.
20 The Attorney-General’s Portfolio, Portfolio Budget Statements 2006-07, 9 May 2006, available on the Attorney-General’s Department website (accessed on 1 September 2006).
21 Interview on ABC Radio’s AM Program, ‘Anti-terrorist police raids cause harassment concerns’, 28 June 2005.
22 Interview on SBS television current affairs program, Dateline, 29 June 2005.
23 ‘ASIO gags media’ broadcast on Media Watch, ABC TV, 4 July 2005, AFP e-mail available on the ABC website (PDF 417KB) (accessed on 1 September 2006).
24 IGIS Annual Report 2004-2005, p19.
25 IGIS Annual Report 2004-2005, see p. 7 and Annex 1, Tables 1 and 3.
26 Prime Minster’s Media Release – Immigration Detention – published on 17 June 2005, available on the Prime Minister of Australia website (accessed on 1 September 2006).

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Inspector-General of Intelligence and Security