Australian Secret Intelligence Service

What ASIS does

ASIS was established in May 1952 and operated under a series of government directives until it was put onto a statutory footing in October 2001, with the coming into effect of the Intelligence Services Act 2001 (ISA).

ASIS’s various functions are set out at section 6 of the ISA, and its activities are regulated by a series of ministerial directions, ministerial authorisations (MAs) and privacy rules, made pursuant to the ISA.

ASIS’s primary function is to obtain and distribute intelligence information which is not readily available by other means, about the capabilities, intentions and activities of individuals or organisations outside Australia.

ASIS’s other functions include communicating such intelligence in accordance with Government requirements, conducting counter-intelligence activities and liaising with intelligence or security services, or other authorities, of other countries.

So as to discharge its functions ASIS generally relies on human sources to collect relevant foreign intelligence. This intelligence information is then transformed into intelligence reports and related products which are then made available to key government decision-makers.

The foreign intelligence collection 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.

Significant issues

Growth and expansion

ASIS, like the other AIC agencies, has experienced a period of rapid and continuing growth in the period since the 11 September 2001 terrorist attacks on the United States and subsequent attacks on Australian and western interests around the world.

One measure of the significant growth which ASIS has recently experienced is budgetary. The total appropriation granted to ASIS from all sources in the 2006–07 Commonwealth Budget was $131.4 million48, while this figure had grown to $162.5 million49 when the 2007–08 Commonwealth Budget was brought down in May 2007.

Rapid and continuing growth will pose issues for any organisation and ASIS is not immune from this general rule, excepting that the secretive work it undertakes means that these issues can be made more difficult to manage by the needs of security.

I have sought and received regular updates on how the additional funds allocated to ASIS are being spent, the consequential rebalancing of organisational structures and priorities within ASIS, and on recruitment, training, accommodation and facilities issues.

I have also sought and received feedback on the use of internal grievance mechanisms and the results of staff surveys, as a guide to the current organisational health of ASIS.

While the continuing expansion of ASIS provides it with new opportunities, the Director-General is fully seized of the risks associated with growing rapidly and is concerned to ensure that the process of change is managed effectively.

From what I have seen the rapid expansion of ASIS has been managed in a considered and sensible manner, with appropriate regard shown to the interests of individuals, as well as ASIS as a whole.

Ethical issues

The collection and other operational activities undertaken by ASIS are frequently challenging and potentially quite dangerous. There are many reasons for this not the least being that the intelligence information ASIS is charged with obtaining would clearly be of little value if it could be obtained freely, and without risk, by other means.

In order for ASIS to fulfil its functions some of its staff will necessarily be required to work in hostile or harsh operational environments, a long way from the usual support systems which are available to individuals who work in more unusual fields.

Many ASIS staff will also be subject to special pressures associated with the kind of work they perform, must adapt psychologically to the risk and possible consequences of exposure, and deal regularly with individuals who might otherwise be regarded as ethically challenged, without letting this corrode their own moral code.

It is not surprising that this type of work throws up ethical quandaries and we become aware of such issues from time to time, either through direct contacts made with our office, or through our regular inspection activities.

My experience is that ASIS management are well attuned to the sensitivities and nuances of the work with which they are engaged. In their discussions with me and in responses to correspondence posing questions, I have found the responses to be thoughtful and considered.

Special briefings

In discharging my duties I have regular and frequent contact with the Director-General of ASIS, Mr David Irvine AO, his senior managers, and a range of less senior officers who hold key positions.

In addition to our regularly scheduled inspection visits, I met with senior ASIS officers on at least 20 separate occasions during this reporting period, either where I specifically sought a briefing on a particular subject, or where a senior ASIS manager has wished to bring something to my attention.

These briefings covered a wide variety of issues ranging from internal structures and processes to particular operational activities. Due to the inherent sensitivity of the subject matters discussed, I am not able to make further comment in this report.

I am appreciative of the responsiveness of ASIS to my requests for briefings, the willingness of ASIS to proactively bring matters to my attention, and the candour which is displayed in these meetings, all of which I view as positive signs of ASIS’s attitude to external oversight.

Visits and contact with staff

As has been the case since I first became IGIS, I try to personally meet with the more senior ASIS officers prior to the commencement of 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 them.

I consider these meetings to be 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.

These are important messages to send and to reinforce because, for the most part, I will not be in a position to visit or meet with ASIS staff in the field.

Notwithstanding this, I did call on some ASIS personnel in the course of a brief overseas visit I made during the reporting period.

I also meet occasionally with heads of mission who are being sent to posts where ASIS staff are present to discuss any issues they might have prior to their departure. This is a useful means of conveying information relevant to our respective functions.

Training

Members of my staff and I regularly make presentations to ASIS officers at ASIS training courses, and we also incidentally address ASIS staff when we present at AIC training courses at which they are participants.

The frequency with which we make these presentations is less than for ASIO and DSD, but is appropriate given the respective sizes of these agencies.

As a minimum, I meet with each new intake of intelligence officer trainees to explain the role and functions of my office.

It is my intention in 2007–08 that my staff and I will also attend various ASIS training sessions as observers, so that we can view the training methods to which trainees are subject.

Access to AUSTRAC data

ASIS was little touched by legislative changes during the reporting period but, as detailed elsewhere in this report, following the passage of the Anti-Money Laundering/Counter-Terrorism Financing Amendment Act 2007, ASIS will for the first time be able to directly access various financial transaction records maintained by AUSTRAC, and to communicate such information to foreign intelligence agencies, subject to certain conditions being met.

This legislation has brought ASIS into line with ASIO which has had a long standing formal relationship with AUSTRAC.

As a consequence of the passage of the above Act, ASIS is developing an MOU with AUSTRAC which will set out the terms and conditions under which it can obtain access to AUSTRAC’s records.

Once this MOU has been developed and I have revised my own MOU with AUSTRAC, I will institute regular inspections of ASIS to ensure that it complies with the terms and conditions under which access to financial transaction reporting information has been provided to it.

Work on the above was continuing as at the conclusion of this reporting period.

Inspection activities

Range and scope

As ASIS continues to grow in size, it follows logically that the volume of operational activities and records which need to be considered or reviewed also grows. It also follows that as ASIS expands the scope of its activities and refocuses its priorities, that I will incorporate new elements into my inspection program.

The inspection activities conducted by my office in respect of ASIS therefore reflect a mixture of continuity and change.

During the reporting period, we maintained many of the features of our usual inspection program, but also added some new features or activities. Inspection activities undertaken during the reporting period included:

  • reviewing all MAs issued to ASIS
  • reviewing all submissions made to the Minister for Foreign Affairs
  • reviewing and reconciling weapons related authorisations
  • regularly inspecting current operational files
  • on-going monitoring of compliance with the ASIS privacy rules, and
  • conducting regular roundtable meetings to discuss issues of common interest.

Review of Ministerial authorisations

Section 8(1) of the ISA requires the Minister for Foreign Affairs to issue a written direction to the Director-General of ASIS setting out the circumstances when ASIS must obtain the Minister’s authorisation to undertake certain activities. Such a Ministerial Direction was issued to the Director-General of ASIS in late 2001, to coincide with the commencement of the ISA.

My office reviews all MAs to ensure that they conform to the requirements of the ISA and the terms of the Ministerial Directions to which ASIS is subject.

We conducted six such inspections during this reporting period, and generally found the authorisations to have been properly made and in conformity with all obligations.

We noted the first instance we had seen of the use of section 9A of the ISA, under which authority the Prime Minister, the Minister for Defence or the Attorney-General, may issue a MA to ASIS in an emergency situation, should the Minister for Foreign Affairs not be available.

In the case in question the Minister for Foreign Affairs was in transit when a time critical operational opportunity presented itself which required an MA. The authorisation was granted in conformity with the requirements of section 9A, and did not cause me any concerns, rather it revealed that the processes put in place to deal with such a circumstance had worked well.

We also pointed to a minor dating anomaly on the face of one authorisation. Although we did not believe that this anomaly was of any legal consequence (as the intention of the Minister was very clear), ASIS nonetheless immediately took action to have the error corrected, thus removing any doubt.

Ministerial submissions

Whenever my staff and I conduct a review of MAs, we also review all of the other submissions which the Director-General puts to the Minister.

The content of these submissions is necessarily sensitive, dealing as they do with a wide range of topical subjects affecting ASIS upon which the Director-General believes the Minister should be kept informed.

As a consequence of reviewing ASIS’s ministerial submissions, I sometimes seek briefings from the Director-General.

I am grateful to the Director-General for providing me with continuing unfettered access to these documents.

Authorisations related to training in/or use of weapons for self-defence purposes/self-defence techniques

Subclause 1(5) of Schedule 2 of the ISA requires the Director-General to provide me with copies of all approvals issued by the Minister of Foreign Affairs in respect of training in the use of a weapon for self-defence purposes, the provision of a weapon for self-defence purposes, or the delivery of training in other self-defence techniques.

I am confident that I had visibility of every authorisation which was issued during this reporting period. My confidence in making this statement is based on:

  • our regular examination of all submissions made by the Director-General to the Minister for Foreign Affairs
  • the receipt by me of each approval which specifically dealt with training in the use of weapons for self-defence purposes, the provision of weapons for self-defence purposes, and/or the delivery of training in other self-defence techniques (cross referenced against the ministerial submission files we examine)
  • independent access to the internal ASIS database recording such authorisations, and
  • a full reconciliation of these records following the completion of the reporting period.

While I am not in a position to report the precise number of authorisations which were issued I can nonetheless advise that it was not an excessive number, and in my view each request for an authorisation was soundly based and proportionate to the requirements of ASIS.

I have also spoken at length with the officers responsible for maintaining the above records, other ASIS staff with functional oversight of this process, and ASIS officers who have received training and/or were authorised to carry a weapon for self-defence purposes should circumstances require it.

Based on these discussions and our other review activities I am satisfied that the powers afforded to ASIS under Schedule 2 of the ISA are being used professionally and as intended, and not being misused.

Clause 3 of Schedule 2 of the ISA also requires the Director-General to provide me with a written report should a weapon allocated to an authorised person for self-defence purposes be discharged in specified circumstances (other than during training). I received no such notifications during the reporting period.

Operational file review activities/use of former IGIS as a consultant

Since becoming IGIS in 2004 I have placed considerable store on regularly reviewing ASIS’s operational case files, either directly or at one remove. This was again the case in this reporting period.

I believe this is a very important inspection activity as the information contained in these files provides insight into the operational environment in which ASIS’s field staff operate, some appreciation of the special pressures they are placed under, and the extent to which their activities are being directed and controlled by Headquarters staff.

I therefore continued the consultancy arrangement I have with my predecessor, Mr Bill Blick, whereby he spends between two and three days per month reviewing ASIS’s operational case files and reporting his findings back to me at the completion of each inspection.50

The task of reviewing ASIS’s operational files, like painting the Sydney Harbour Bridge, is never complete, but I am keen to cycle through as many files as possible each year.

To this end Mr Blick has been assisted during his inspections by one of my senior staff and I anticipate involving another member of staff in this activity in the future. I also intend to personally conduct more inspections of this kind, as my schedule permits.

While not able to go into specific operational details in a public report I can provide assurance that our examination of this material is rigorous and thorough.

Following each inspection I provide the Director-General with a detailed letter setting out our findings. These letters frequently pose searching questions relevant to the conduct of the operations under review.

The Director-General has provided written replies in all instances where I have required a response.

Some of these responses have resulted in a further exchange of correspondence or briefings to clarify issues we have raised.

I am appreciative of the efforts of those ASIS staff who have assisted us during these inspections, have provided briefings, or been involved in the preparation of responses to our various queries.

Privacy rules

Section 15(1) of the ISA requires that written rules exist to regulate the communication and retention by ASIS of intelligence information concerning Australian persons.

The Minister for Foreign Affairs issued such rules in October 2001 to coincide with the coming into effect of the ISA and they have not been varied since. A copy of the ASIS privacy rules were published in the IGIS Annual Report 2001–0251 and can also be accessed via the ASIS website52.

The ASIS privacy rules are important because in discharging its functions ASIS generates and receives a significant amount of secret intelligence information. Information reaching this threshold is put into reports which are then circulated to appropriately cleared addressees with a demonstrated need to know this information.

My office regularly reviews this reporting to ensure that, so far as we are able to ascertain, it was collected in accordance with the requirements of the ISA, and then reported/disseminated in accordance with the requirements of the ASIS privacy rules.

The total number of reports which are circulated run into many thousands each year, but the instances when it is felt necessary or appropriate to refer to Australian persons in this reporting is relatively low.

So as to ensure that we have full visibility of every instance where intelligence on or about an Australian is included in an ASIS report, relevant ASIS staff are required to complete a privacy cover sheet, highlighting the reference, citing justification under the privacy rules for the inclusion of this information, and giving an explanation of how the relevant provision is applicable.

All of these reports and their accompanying privacy coversheets are provided to my office approximately every two weeks for consideration and comment.

Following our review of the reporting we provide written comments to the head of the relevant section within ASIS which coordinates the publication and distribution of this reporting.

This a labour and time intensive inspection and review task but I believe that it is worth the effort, given the marked improvement we have noted over several years in the manner in which ASIS is fulfilling its obligations.

I am pleased to say that I have seen no privacy abuses in the material we have access to, and that there is a commitment within ASIS to the rigorous application of the privacy rules.

Periodic roundtable meetings

I place significant importance on meeting with key staff in each of the intelligence collection agencies on a regular basis, so that we might discuss issues of common interest or concern openly and candidly, rather than reflexively exchanging correspondence.

In ASIS we conduct roundtable meetings of this kind approximately every six weeks. Our ordinary practice is to circulate an agenda approximately a week before each meeting and invite staff along who are involved in policy development, legal affairs and intelligence production. I find these meetings to be of great utility as they frequently involve discussion of practical issues and concerns at the desk officer level.

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.

ASIS continues to satisfy this requirement by providing me with six-monthly reports on the above matters.

Complaints and inquiries

I carried over two unfinished preliminary inquiries into this reporting period each of which have now been finalised. I also received two new complaints about ASIS which led me to initiate preliminary inquiries.

In addition to these matters five other people contacted this office with queries or concerns about ASIS which were handled administratively.

The above rate of complaint about ASIS is relatively stable when considered against the number of complaints received in the past few years.

A summary of some of the inquiries my office conducted is provided below.

Recruitment related complaints

One of the complaints I carried over, and one of the new complaints I received concerned recruitment related issues.

The recruitment related complaints we have received in the past have tended to be concerned with procedural issues (such as the timeliness of the selection process), restrictions imposed on persons who have difficult to verify or uncheckable backgrounds, and what feedback can or should be provided to unsuccessful candidates. All three of these themes relate in some way to the special security requirements that attach to employment with ASIS.

The two recruitment complaints referred to above primarily concerned process issues and the provision of feedback.

Obtaining employment with an intelligence agency is, of course, not similar in every respect to gaining employment elsewhere in the public or private sector, as it is necessary for candidates for such positions to be the subject of psychological testing procedures, and other intrusive and time consuming background checks.

This testing is designed to help ensure that there is a close correlation between an applicant’s skills and attributes and the requirements of particular positions within the agency.

Psychological testing also serves the purpose of identifying candidates who do not have the aptitude or psychological characteristics necessary to be successfully employed in a high security environment, or who might, in some circumstances, present as a potential security risk.

It is also sometimes the case that there is a genuine mismatch in how a candidate views their own strengths and attributes, compared to how this is judged in an external assessment, and the gulf between these positions cannot always be bridged or reconciled.

The issue of providing meaningful feedback is more problematic. As detailed in last year’s annual report53 ASIS’s standard position has been that it does not provide performance feedback to unsuccessful job applicants.

The justification for this is that ASIS does not wish to reveal too much of its selection methods, for fear that possible weaknesses might be exploited and unsuitable persons selected for employment with ASIS.

While ASIS generally holds to this position, it recognises that unsuccessful candidates who are already employed elsewhere in the AIC fall into a different category than do unsuccessful candidates from elsewhere.

In recognition of this ASIS has decided to be slightly more forthcoming in providing feedback to such candidates, with a view to assuaging any concerns these candidates might have about the effect of an unsuccessful application on their security status, future job prospects and so on.

Overall, given the rate at which ASIS has grown and continues to expand, the number of recruitment related complaints received by this office continues to be very small.

Grievance process issues

In June 2006 I received a complaint from a current employee of ASIS alleging a flawed and unjust investigation of a formal grievance he had lodged regarding aspects of his employment. The complainant also raised other issues which were not dealt with as a part of the grievance review process.

On the basis of the information provided to me I decided to initiate a preliminary inquiry. The purpose of the inquiry was to determine whether I had jurisdiction to review certain aspects of this case, and to also examine certain other aspects which appeared not to have been the subject of prior consideration and determine whether I could or should investigate them.

I devoted significant time and effort to reviewing relevant papers, meeting with the complainant and subsequently speaking to him at length, and also meeting with senior ASIS management.

At the end of this process I determined that certain employment related decisions were management prerogatives which I was not properly placed to second guess, and that while there were certain things ASIS could have perhaps handled differently, the complainant had been properly heard and his concerns were taken seriously.

I also determined that there were certain other issues raised by the complainant which were outside of my jurisdiction.

Footnotes
48 Department of Foreign Affairs and Trade Portfolio Budget Statement 2006-2007, ASIS statement (accessed 22 August 2007).
49 Department of Foreign Affairs and Trade Portfolio Budget Statement 2007-2008, ASIS statement (PDF 229KB) (accessed 22 August 2007).
50 Details of this arrangement were advised in IGIS Annual Report 2005-2006, Canberra, October 2006, p. 38-39, and p. 60.
51 IGIS Annual Report 2001-2002, Canberra, October 2002, Annex 4, pp. 91-92.
52 See Australian Secret Intelligence Service for the ASIS Privacy Rules (accessed on 24 August 2007).
53 IGIS Annual Report 2005–06, Canberra, October 2006 p.41.


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