Australian Security Intelligence Organisation

What ASIO does

ASIO is Australia’s national 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 under the ASIO Act.

ASIO’s role is to identify and investigate threats to security, both in Australia and overseas, and to provide advice to protect Australia, its people and its interests. ASIO’s functions are set out in the ASIO Act.

Security is defined in the ASIO Act as:

  • espionage
  • sabotage
  • politically motivated violence
  • the promotion of communal violence
  • attacks on Australia’s defence system, or
  • acts of foreign interference.

It also includes the carrying out of Australia’s responsibilities to any foreign country in relation to threats to security.

ASIO collects information using intelligence methods (such as human sources, special powers authorised by warrant, and through its liaison relationships) as well as from published sources.

The ASIO Act does not limit the rights of persons to engage in lawful advocacy, protest or dissent. ASIO does not carry out criminal investigations nor have powers of arrest, but does conduct activities in parallel to Australian law enforcement agencies in matters where there is a security dimension as well as possible criminality.

ASIO does not have the statutory authority to engage in surveillance of ordinary members of the community going about their lawful business.

ASIO has to obtain external approval for use of its most intrusive powers.

Further information about ASIO, the Attorney-General’s guidelines and the ASIO Act, can be found on the Australian Security Intelligence Organisation’s Internet homepage.

ASIO also produces an unclassified annual report to Parliament.

Significant issues

New Attorney-General’s Guidelines

Section 8A of the ASIO Act provides that the Attorney-General may issue guidelines to the Director-General of Security in respect of the performance by ASIO of its functions or the exercise of its powers, and must issue guidelines in relation to the performance by ASIO of that part of its functions which relate to politically motivated violence.

On 12 October 2007 the then Attorney-General, the Hon Philip Ruddock MP, announced that he had issued a new set of guidelines to the Director-General of Security51. A copy of the new guidelines is provided at Annex 7.

The new guidelines are based on two similarly themed directives issued by the then Attorney-General in 1992, but with updates to reflect technological developments and contemporary practices, remove repetitious and confusing language, and consolidate the guidelines into a single document.

I was consulted during the development of the guidelines and am supportive of a number of the changes which have been made. I am especially supportive of the emphasis which is placed on ensuring proportionality in investigations.52

There are some aspects of the new guidelines which require ASIO to confirm its existing policies or develop new internal procedures. Two examples of this are:

  • the former guidelines required ASIO determine in advance whether an investigation should be undertaken at a preliminary or general level. The new guidelines remove this distinction, and
  • the new guidelines specifically provide for ASIO to collect and maintain a comprehensive body of reference material to contextualise intelligence and to maintain a broad database (based on that reference material) against which information can be checked and assessed53. A previous prohibition against speculative data-matching has also been removed.

I have been or am being consulted on the development of ASIO’s new internal policies and procedures, and am naturally keen to ensure that ASIO maintains stringent business rules and security standards in respect of these important issues.

It is also likely that my office’s inspection program will be revised once the new internal processes referred to above have been settled.

Ul-Haque Inquiry

In “The Year in Review” chapter of this report, I referred to a major inquiry which I initiated on 14 November 2007, into certain aspects of an investigation by ASIO into Mr Izhar Ul-Haque.

Mr Ul-Haque is an Australian citizen of Pakistani heritage who, following an investigation undertaken by ASIO and the Australian Federal Police (AFP), was arrested in April 2004 and charged with the offence of training with a proscribed terrorist organisation.54

My decision to initiate this inquiry was prompted by the comments of Justice Michael Adams of the NSW Supreme Court in a decision dated 5 November 2007.55

In his decision, Justice Adams found that certain records of interview between the accused (i.e. Mr Ul-Haque), and the AFP which had been tendered as evidence were inadmissible because:

  • they were influenced by oppressive conduct toward Mr Ul-Haque by ASIO and AFP officers (with reference to s.84 of the Evidence Act 1995)56
  • the truth of certain admissions made by Mr Ul-Haque was likely to have been adversely affected by the methods of questioning employed by two ASIO officers, known to the court as B15 and B16 (with reference to s.85 of the Evidence Act)57, and
  • admissions had been obtained through improper conduct by the ASIO officers, B15 and B16 (with reference to s.138 of the Evidence Act). 58

The Judgement in this matter also stated that one or both of B15 and B16 had committed the offences of false imprisonment and kidnapping at common law and under s.86 of the Crimes Act 1900 (NSW); the tort of false imprisonment; and unlawful trespass at the residence of Mr Ul-Haque. However, neither B15 or B16 had been charged with any such offences.

While it is not my role to reach any conclusions about whether criminal offences have been committed, my functions under the IGIS Act do include inquiring into the legality and propriety of the activities of ASIO, and providing a report and making recommendations in that regard. Having read the Judgment and reflected on the matter, I decided that it would be appropriate for me to commence an own motion inquiry into:

  • actions taken by ASIO in respect of Mr Ul-Haque throughout 2003, and
  • ASIO’s policy, procedures and general practices on the interviewing of persons of security interest, as they stood in November 2003 and currently (if different). This included interviews conducted during the execution of entry and search warrants as well as those in other circumstances, and the interaction of these activities with activities of the AFP.

My inquiry was ongoing at the conclusion of the reporting period.

Increase in the number of immigration-related complaints

The Department of Immigration and Citizenship (DIAC) has overall responsibility for the administration of visas being granted to specified categories of people wishing to enter Australia.

In some instances DIAC will require persons wishing to enter Australia to complete DIAC Form 80 - Personal particulars for character assessment.

DIAC reviews each completed Form 80 it receives and refers some of these to ASIO (in accordance with its statutory obligations and its own internal requirements and procedures), so that ASIO can conduct security checks on these applicants, as part of the visa application process.

Over the past two reporting periods there has been a noticeable increase in the number of complaints I have received about the timeliness with which ASIO processes security assessments for immigration applications.

As detailed in the “Performance” chapter of this annual report, this office received a total of 193 new complaints in 2007–08, compared to 71 such complaints received in 2006–0759 and 26 complaints of this kind in 2005–06.

I sought special briefings on a number of occasions during the year from ASIO senior managers about the changes ASIO was introducing to improve its procedures for the processing of security assessments. The purpose of these briefings and meetings was to:

  • ascertain if there were any apparent reasons for the recent rise in complaints to my office (as mentioned above), and
  • maintain visibility of the implementation of an ASIO-DIAC project to increase the accuracy and speed of information passing between the two agencies.

It is my belief that one significant contributing factor in the substantial rise in immigration related complaints to my office is a growing awareness within immigrant communities in Australia and among migration agents of the existence and remit of my office. I would also note advice to me that ASIO increased by 36% the number of visa security assessments it processed in 2007–08.

Further detail on the general conduct of my inquiries in response to these complaints is contained elsewhere in this chapter.

ASIO’s continued growth, litigation and review workload

As mentioned in my previous annual reports, ASIO has received increased funding from the government over recent years to allow it to respond promptly and effectively to the challenging security environment in which it operates.

During the reporting period ASIO made a major contribution to the security arrangements for a number of high-profile events (e.g. various APEC meetings, the Olympic torch relay, and the initial planning of World Youth Day).

ASIO’s continued growth has necessarily led it to reconsider and adjust its internal structures to better meet the needs of the Organisation. I have been briefed about these matters.

While I cannot reveal too much about these changes for obvious security reasons, any reader of the nation’s classified advertisements will be aware that ASIO has been attempting to upgrade the number of legally qualified individuals it has at its disposal.

This need is a necessary and appropriate response to ASIO’s growing counter-terrorism litigation caseload.

It is a matter of public record that during 2007–08 trials or pre-trial hearings commenced relating to the prosecution of 22 individuals on terrorism related charges in both Melbourne and Sydney.

In addition to these prosecutions, ASIO also had a direct interest in a range of other high profile legal actions.

ASIO has also committed significant resources to providing information to a number of external security reviews such as the Clarke Inquiry into the case of Dr Mohamed Haneef.

Monthly meetings and special briefings

Immediately prior to the commencement of 2007–08, I began moves to set up regular monthly meetings with senior ASIO personnel. The first of these meetings was held in August 2007.

I believe that these meetings have proven to be a useful vehicle for improving communication between my office and ASIO senior managers.

Our monthly meetings provide a forum for candid discussions about issues arising out of the inquiry and inspection activities of my office, and to exchange views on other issues in which we have a common interest.

These meetings have also provided a mechanism for me to receive regular updates on outstanding correspondence, when necessary, and for me to respond to any requests for feedback, clarification or comment levied on my office.

The meetings are also an opportunity for ASIO to provide me with special briefings when the need arises. The inquiry, inspection, monitoring and review activities of the office frequently turn up subjects or issues on which I require or would like additional information.

On those occasions when I require special or additional briefing on a particular subject I will either raise it for consideration at the monthly meeting or write to the Director-General of Security seeking his assistance. If the issue is more pressing, I may also directly contact the relevant senior manager.

The Director-General of Security, Mr Paul O’Sullivan, has not placed any restrictions on who I might seek briefings from, or to whom I might speak within ASIO.

I met with senior ASIO officers on at least 22 separate occasions, in addition to our monthly meetings, to discuss issues such as the Attorney-General’s Guidelines, the retention of data and destruction of records by ASIO, the progress of various legal actions, immigration related security checking, the internal structure of ASIO, various inspection and inquiry tasks, and in regard to specific operational matters.

I would like to thank those ASIO officers who have contributed to the free flow of information and views between our respective agencies.

Training

The workload of the office has increased substantially in the period since my initial appointment. Despite this I place very significant store on personally delivering as many presentations and training sessions as I can to each of the AIC agencies, including to ASIO staff.

During this reporting period, my staff and I delivered a total of 11 presentations which were tailored for ASIO specific audiences.

My staff and I also spoke to other ASIO staff when making presentations to various courses where participants were drawn from across all AIC agencies.

A number of opportunities were also identified for my staff and me to observe or participate in ASIO training. I was particularly grateful for the training provided to a number of OIGIS staff on the use of a particular information system, which has enhanced the office’s capacity to undertake independent checks of various electronic records.

Inspection activities

General scope

ASIO has a strong domestic focus and is the AIC agency most likely to directly interact with members of the Australian public. Hence it is logical and appropriate that its intelligence collection activities should be subjected to more intensive and more frequent review by my office than the other agencies of the AIC.

During this reporting period my office conducted 55 inspection visits to ASIO’s various offices compared to 56 separate inspections in the previous reporting period. While the number of visits is consistent between the reporting periods, there was a significant increase in the number of OIGIS staff allocated to these activities and the duration of some of these inspections.

Range of current and new inspection activities

As with previous years, my office inspected records associated with a wide range of ASIO activities including warrant operations, approvals to commence an investigation, reviews of investigations, access to sensitive financial records, liaison with law enforcement agencies, use of assumed identities and exchange of information about Australian persons with foreign liaisons.

My office also conducted a new inspection project, relating to intelligence information on currently serving politicians.

Details of the outcome of these inspection activities, to the extent that security considerations permit, are summarised below.

Project to review the retention of intelligence information on currently serving politicians

Since becoming Inspector-General, the activities of OIGIS have largely been focussed on areas such as ASIO’s new powers and capabilities. However, I have also reflected that it is important not to lose sight of more “traditional” concerns about intelligence and security agencies, for example that they do not act in a politically partisan manner.

With this in mind, I decided that reviewing the manner in which ASIO handles any intelligence information regarding currently serving parliamentarians would be a worthwhile activity for my office.

In March 2008 I wrote to the Director-General of Security proposing a new inspection project covering these matters. In broad terms the project involved a review of relevant ASIO policies and procedures and then identifying and reviewing a sample of records which might include reference to currently serving parliamentarians.

My decision to commence this inspection activity was not precipitated by any particular event, nor did it reflect a view that ASIO had acted in ways that could be said to be politically partisan. Rather, it simply reflects my view that this is an important inspection activity that my office should undertake from time to time and an increase in the resources available to me.

At the end of the reporting period the project was largely completed. The preliminary outcome of this activity was that there was very little of concern identified. I was minded at the conclusion of the reporting period to make a number of minor suggestions to the Director-General of Security to tighten procedures (and indeed have since done so). It is my intention to follow this up in the forthcoming reporting period.

Warrant operations

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 range of special powers warrants available to ASIO includes:

  • telecommunications interception
  • entry and search
  • computer access
  • listening device
  • tracking device (on persons or objects), and
  • postal and delivery service articles.

As the exercise of these special powers will often not be apparent to the subject of the warrant and are by their nature highly intrusive, special powers warrants should only be considered for use when other, less intrusive, means of obtaining information are likely to be ineffective or are not reasonably available.

The Attorney General is the issuing authority for all special powers warrants, with the exception of questioning and questioning and detention warrants, which can only be obtained from a properly qualified issuing authority (i.e. a Federal magistrate, or a judge).

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 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 ASIO, and
  • commence the process again, should it be decided to renew a warrant.

Outcome of warrant inspections

ASIO’s warrant operations constitute some of its most sensitive and highly classified activities. While I can speak in general terms about our inspection findings, there are naturally some issues which, for reasons of security, cannot be included in this report.

Each year my staff and I aim to inspect every warrant request by ASIO. This objective was achieved in 2007–08, with the exception of documentation associated with one warrant. The one outstanding warrant request will be reviewed at the first available opportunity in 2008–09.

The inspections go beyond simply seeing and ‘ticking off’ each warrant. My staff examine each set of warrant related papers to be satisfied that:

  • the 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 (this is particularly relevant where a ‘B-Party’ telecommunications interception warrant is being sought)
  • appropriate internal approvals for the request have been obtained
  • the Director General of Security has identified in writing those individuals who may execute the warrant, or communicate information obtained from the warrant
  • 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 authorised by the warrant.

Based on my own observations and information which is fed back to me by my staff, I can report that the quality of the warrant requests and other warrant related documentation which goes to the Attorney-General have been of a consistently high standard.

The records reviewed indicated that in each case where a special powers warrant was issued in 2007–08 that ASIO had:

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

In past annual reports I have made particular reference to my interest in ASIO’s use of B-Party warrants. 60

B-Party warrants are targeted at telecommunications services which a person of security interest is likely to be in contact with, rather than actually being owned by that person.

On the basis of the office’s inspection activities and various briefings which I have received, I continue to be reassured that this type of warrant is used sparingly.

On those occasions when such warrants were sought, I was satisfied that all other practical methods of identifying the telecommunications services of the person of interest had been exhausted, or that it was not otherwise possible to intercept the services of the persons of interest.

Notwithstanding this generally very favourable assessment of the overall manner in which warrants are processed in ASIO, my staff and I did identify several issues which merit comment.

Unauthorised telecommunications interception

During 2007–08 my office identified two instances where an error or fault which was within ASIO’s control led to unauthorised telecommunications interception. This compares with one such instance during the previous reporting period. In both cases the intercepted data was destroyed and all related records were purged from ASIO’s electronic databases.

In addition, my staff identified or had brought to their attention, four 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. This compares with three such instances during the previous reporting period.

While any instance where unauthorised interception occurs, or has the potential to occur, is serious, I am pleased with the low number of instances during the reporting period. As I noted in my previous annual report61, this achievement is even more commendable when one considers that the overall number of services intercepted under telecommunications interception warrants was greater than the previous reporting period and the legal framework under which warrants are issued is quite complex.

In addition to the above cases, I can also report that no instances where the actions of bodies external to ASIO resulted in, or could potentially have resulted in, unauthorised collection occurring were identified. This compares to five such instances in the previous reporting period.

Interception management systems

In addition to my office’s frequent and regular review of ASIO’s warrant documentation files, my staff also periodically interrogate ASIO’s interception management systems.

The purpose of undertaking these checks is to gain independent assurance that collection is only occurring against telecommunications services which are listed on properly authorised warrants, and within the specified collection period.

I can advise that none of the checks my staff conducted during 2007–08 revealed any instances of inappropriate or otherwise unauthorised collection.

Reports of warrant activity

In addition to ensuring that all warrant documentation is as complete and accurate as possible when submitted to the Attorney-General or an Issuing Authority (in the case of questioning and questioning and detention warrants), ASIO is also required to provide a written report to the Attorney-General on the outcome of every warrant which is issued to it.

Reports on telecommunications interception warrants issued to ASIO under the Telecommunications (Interception and Access) Act 1979 must be furnished within three months of their expiry or revocation, whereas there is no mandatory deadline for reports on the outcome of the other forms of warrants available to ASIO.

ASIO brought to my attention one instance where the outcome of a telecommunications interception warrant was not provided to the Attorney-General within the requisite timeframe. This was due to an administrative oversight. However, I am confident that ASIO continues to make its best endeavours to guard against errors of this kind.

I consider it noteworthy that ASIO brought this error to my attention rather than leaving my staff to detect it. I believe this speaks well of ASIO’s commitment to meeting its obligations and also sends a strong message to its staff that while mistakes will naturally happen they should be acknowledged and corrected expeditiously.

Questioning warrants/questioning and detention warrants

The capacity for ASIO to access questioning warrants and/or questioning and detention warrants derives from Division 3 of Part III of the ASIO Act. Division 3 was inserted into the Act by the ASIO Legislation Amendment (Terrorism) Act 2003.

A summary of the main features of Division 3 of Part III is provided in the IGIS Annual Reports for 2003–04 and 2005–0662.

My position remains that either I or a senior member of my staff will attend for at least the first day where an individual is questioned under such a warrant and that further attendance will be determined on a discretionary basis.

No warrants were issued under either section 34E (questioning) or section 34G (questioning and detention) of the ASIO Act during 2007–08.

Approval to investigate – procedures

Staff employed within ASIO cannot commence an investigation into a person or organisation unless a formal and auditable process is followed.

The Attorney-General’s Guidelines (referred to earlier in this chapter) set out in general terms the circumstances in which ASIO may obtain intelligence relevant to security. These guidelines are supplemented by detailed internal policies and procedures, the application of which is monitored by this office.

Taken together, the Attorney-General’s Guidelines and ASIO’s internal policies and procedures require that before an investigation can be commenced a specific approval must first be obtained.

The initial steps involved in this process require the requesting officer to take steps to properly identify the person or organisation to be investigated, to detail how that person or organisation is linked or potentially linked to a matter of security interest, and to also detail the objectives, nature and proposed duration of the investigation.

The work classification level within ASIO at which an approval can be given is dictated by the nature and sensitivity of the investigation being proposed. The more sensitive or intrusive the proposed investigation, the more senior the approving officer in ASIO has to be.

During this reporting period my staff conducted 26 separate file reviews of investigation approvals, spread over 34 days. These inspections were conducted in Canberra and at ASIO’s various interstate offices. During these inspections, the following checks were made:

  • whether there were reasonable grounds for the request to conduct an investigation
  • whether the level of the authority was appropriate for the proposed investigative activities
  • if the proposed duration of the approval was appropriate
  • 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.

Approval to investigate – inspection results

As with most of the office’s inspection activities, detailed discussion of specific cases is not possible but some general comments can be made on the issues noted in the course of the inspection activities.

Overall I was satisfied with the manner in which the approval process worked during the reporting period. Many, if not most, of the approvals reviewed were of a high standard.

Nonetheless I continued to provide feedback to encourage improvement in standards and consistency in approach across ASIO.

The inspections revealed that a few senior officers were regularly using the same form of words when putting limits on particular investigative activities. My feedback was consequently largely focused on the comments and guidance provided by senior ASIO officers when approving investigations.

I actively seek to discourage the use of formulae, as it does not show evidence that the approving officer has considered the case on its individual merits, nor does it provide meaningful guidance to case officers who have to act in accordance with this advice.

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) were also noted but these were very much the exception and did not point to any systemic concerns.

The Attorney-General’s Guidelines require that each approval which is issued should be reviewed, at least annually. In practice this means that a formal review is conducted within a reasonable period following the expiry of an approval, or prior to a new approval on the same subject being sought.

In almost all cases reviews were completed prior to an approval being renewed or within a reasonable period following their expiry.

I was particularly supportive of some policy changes that ASIO instituted over the reporting period, in respect of investigations of persons who have proven to be of long-standing relevance to security. These policy changes will lead to increased transparency in respect of the regular review and continuation or cancellation of such investigations.

ASIO and law enforcement agencies

ASIO naturally has quite close links to law enforcement agencies in all Australian jurisdictions. These links are necessary because there is often a nexus between persons who are planning for or engaged in criminal activities, and persons of security interest.

Cooperation is also necessary in order to plan effectively for major events (such as APEC and World Youth Day) where Australia has obligations with respect to the protection of visiting foreign dignitaries.

As has been the case for many years, whenever OIGIS staff visit ASIO’s state offices they review those files which detail ASIO’s interactions with locally based law enforcement agencies. No substantive concerns arose from review of these records.

Interoperability issues

During 2007–08 the Commissioner of the Australian Federal Police (AFP), Mr Mick Keelty APM, established a committee to examine, inter alia, the effect of interactions between ASIO and the AFP on its national security operations.

The committee comprised the Hon Sir Laurence Street AC KCMG QC, Mr Ken Moroney AO APM and Mr Martin Brady AO. The committee has come to be known by the shorthand title of ‘The Street Review’.

I met with the committee during the course of its inquiries and offered my perspectives on a range of issues of interest to the Committee.

The Street Review: a review of interoperability between the AFP and its national security partners63 was released to the public on 12 March 2008.

The report of the Street Review contains a number of recommendations which I believe will help to ensure that ASIO’s activities complement those of the AFP.

The Street Review recommendations covering a joint decision making framework, a joint operations protocol, counter-terrorism prosecution guidelines, and training enhancement should all assist in this regard.

I had particular regard to the recommendations of the Street Review in the context of my inquiry into the Ul-Haque matter.

Information obtained from AUSTRAC

Since 2000 ASIO and I have each been party to separate Memorandums of Understanding (MOUs) with the Australian Transaction Reports and Analysis Centre (AUSTRAC). These MOUs set out the circumstances under which:

  • ASIO might access and use information which is collected and kept by AUSTRAC, and
  • OIGIS would monitor ASIO’s access to, and use of, this information.

A new IGIS – AUSTRAC MOU was signed on 29 August 2007. A copy is at Annex 6 to this report.

The purpose of this was to reflect the legislative changes that had been introduced under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and the AML/CTF Amendment Act 2007.

As mentioned in some detail in my previous annual report, the AML/CTF Act provides a legal framework in which “designated agencies” are able to access, in strictly controlled circumstances, information which is held by AUSTRAC, with ASIO and OIGIS being “designated agencies” for the purposes of the Act.64

The ASIO-AUSTRAC MOU was also reviewed during the reporting period, with the intention of the parties making a new agreement sometime in 2008–09.

The OIGIS – AUSTRAC MOU requires that I provide a certificate to the Attorney-General on the annual basis, specifying whether or not ASIO has complied with the requirements under the ASIO – AUSTRAC MOU.

A compliance certificate of this kind was provided to the Attorney-General in respect of 2006–07 on 9 January 2008. I am happy to advise that my office identified no issues of concern.

During 2007–08 my staff conducted eight Canberra-based AUSTRAC related inspections compared to nine inspections in the previous year. My staff also review relevant records in ASIO state offices whenever the need or opportunity presents itself.

In the course of these inspections a small number of procedural issues were identified, none of which were of material effect.

In the future I expect to be in a position to send the annual compliance certificate to the Attorney-General in a timelier manner than occurred in this reporting period.

Access to taxation information

Section 3EA of the Taxation Administration Act 1953 provides that the Commissioner of Taxation may disclose tax information to an authorised ASIO officer if the Commissioner is satisfied that the information is relevant to the performance of ASIO’s functions under subsection 17(1) of the ASIO Act.

ASIO’s access to taxation information is the subject of an MOU between the Director-General of Security and the Commissioner of Taxation, and also ASIO’s internal guidelines and procedures.

ASIO accesses tax information infrequently due to the particular sensitivities associated with information of this kind. I consider this to be a sensible and prudent approach.

Use of assumed identities

It has been the practice of my office for many years to periodically review ASIO’s assumed identity registers. During this reporting period, one such inspection was conducted (compared to two inspections in 2006–07).

The registers reviewed 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.

On the basis of the last inspection and an additional briefing, I concluded that the authorisation, allocation and use of assumed identities by ASIO staff continues to be tightly controlled, and that adequate internal checking and review mechanisms exist to ensure that allocated assumed identities are not being misused or abused.

Due to the high standards that ASIO has displayed in this area over a long period of time, and the competing priorities of my office’s inspection program, I have decided not to inspect ASIO’s assumed identities register during 2008–09. Instead, I will simply require that ASIO provide me with:

  • copies of the ASIO internal audit reports on compliance with the assumed identities provisions of the Crimes Act 1914 and the NSW Law Enforcement and National Security (Assumed Identities) Act 1998, and
  • a certificate at the end of the financial year which satisfies the requirements of section 15XUA of the Crimes Act 1914.

Exchange of information with foreign liaisons

During the last reporting period I commenced a new inspection project on the manner in which ASIO shares information about Australian persons with foreign intelligence services and overseas law enforcement agencies.

In preparation for that review ASIO developed a new electronic template to ensure it applied a consistent approach to the release of such information to its foreign liaisons.

My office continued this inspection activity during 2007–08, by examining the relevant records from a particular ASIO liaison office, over a three month period.

We will continue to monitor, on an occasional basis, that ASIO continues to tailor its approach in each instance, having due regard to the overseas agency with which it is dealing, the type of information being requested or provided, and the potential use to which that information might be put.

Complaints and inquiries

As at 30 June 2007 I had the following inquiries in train into complaints about ASIO, which were carried over into this reporting period:

  • one preliminary inquiry, and
  • 17 administrative inquiries concerning the timeliness with which ASIO processed immigration related security checks.

All of these inquiries were concluded early in the reporting period, with the exception of two immigration-related matters which were later progressed as preliminary inquiries (see below).
In the period following the commencement of the new reporting period on 1 July 2007 until 30 June 2008, I initiated three full inquiries into new complaints about ASIO (which is the same number as in the previous reporting period) and 11 preliminary inquiries (compared to five in the previous period).

In addition to the preliminary and full inquiries, the office received 251 other complaints specifically about ASIO, from individuals seeking to reopen former complaints, or making new complaints raising specific concerns. This compares to 199 such complaints in 2006–07.

Of these 251 new complaints which were handled administratively, 193 were concerned with the timeliness with which ASIO processed immigration related security checks. My handling of these complaints is discussed below.

Operational interactions between ASIO and members of the community

As noted above, I initiated full inquiries into three new matters during 2007–08. All of these matters dealt with operational interactions between ASIO and members of the public.

The most complex of these investigations is an inquiry I initiated on 14 November 2007 into the actions taken by ASIO throughout 2003 in respect of a Mr Izhar Ul-Haque. This inquiry necessarily required me to examine ASIO’s policy, procedures and general practices on the interviewing of persons of security interest.

The other two full inquiries were conducted in response to complaints received about the actions of ASIO officers at their respective family homes.

  • In the first instance the complainant felt intimidated by the presence of ASIO officers at the family home during the execution of an entry and search warrant, and subsequently during visits by ASIO officers to return seized items and in the conduct of interviews.
  • In the second instance the complainant felt intimidated by an ASIO officer coming to the family home to seek an interview.

In both cases I found that the evidence did not support a finding that ASIO officers had acted improperly, or that any ASIO officer had intended to act in a threatening, harassing or intimidating manner. To the contrary, the evidence pointed to an active intention by the ASIO officers concerned to avoid offence, rather than to cause it.

Nonetheless, these cases highlight the potential for members of the public to feel anxiety as a result of contact with ASIO and the need for ASIO to remain sensitive to this.

I also conducted one preliminary inquiry, at the request of two community organisations, into whether a member of the public was under surveillance and being harassed by ASIO. The community organisations made this request out of concern for the well-being of that person.

In cases such as this, it is not possible for me to confirm whether or not a specific individual is a person of interest to ASIO or to any of the other AIC agencies. The reason for this is that to do so could provide a ‘back door’ means by which any person who is of genuine or legitimate security interest could determine whether or not they have come to the attention of the AIC. This would obviously be self-defeating for the intelligence community, and would also serve to undermine the capacity of this office to fulfil the objectives for which it was established.

In this case, I was able to advise that my inquiries revealed no evidence of any illegal or improper conduct by ASIO.

Archives related complaints

ASIO routinely receives a large number of requests, via the National Archives of Australia (NAA), for access to its records which are more than 30 years old. These records are in the so-called ‘open period’.

Such applications range from straightforward requests from people seeking the records of a family member, through to professional researchers who submit multiple applications for considerable volumes of records.

Upon receipt of an application for access to open period records, the Archives Act 1983 provides that there can be up to 90 days to:

  • examine records to which access is sought
  • determine if those records, or parts of those records, are exempt records, and
  • release any record, or part of a record, that is not exempt.

I conducted one preliminary inquiry into the timeliness with which ASIO processes applications for access to open period records.

This inquiry was concerned with whether ASIO had processed a number of high volume applications as expeditiously as possible, having proper regard to the 90 day period described above and also to the proper examination of those records.

I found that ASIO had acted with propriety both in respect of its prioritisation of applications and in respect of its treatment of certain cases, where the volume of material that had been requested is so large as to make it impossible to complete for the required examination within 90 days.

I was also satisfied that ASIO is taking reasonable steps to improve the timeliness of its processing of archival material, to the extent it can.

In 2007–08 I also received two queries from members of the public seeking to clarify why ASIO had not given them prior notice that records cleared for release included personal information about themselves. I dealt with these queries administratively.

The Director-General of Security continues to provide my office with quarterly progress reports on ASIO’s overall performance in relation to archives requests. I have also been advised that on 21 May 2008, ASIO and the NAA signed a section 35 agreement under the Archives Act 1983 to establish more formal arrangements for the examination and handling of ASIO’s exempt records.

Release of RCIS papers

During 2007–08 ASIO was also actively engaged in a major activity, preparing for the public release of records associated with the Royal Commission on Intelligence and Security (RCIS).

The RCIS was conducted by the late Justice Robert Hope between 1974 and 1977 and involved a root and branch review of the operation of the agencies which then comprised the AIC. The NAA released many of the records associated with the RCIS on 27 May 2008.

Concerns about recruitment experiences

As touched upon elsewhere in this report, I noted an increase in the number of complaints made to my office about recruitment and selection matters.

During 2007–08 I conducted two preliminary inquiries into complaints about recruitment activity undertaken by ASIO. In both cases, I found ASIO’s administrative arrangements to be generally satisfactory.

Concerns held by former employees

Sections 8(5) and 8(7) of the IGIS Act limit my capacity to investigate what might be regarded as individual employment-related grievances within the six AIC agencies (essentially those relating to promotion, transfer or reduction, termination, discipline, remuneration or other terms and conditions of service, or friction between two individuals).

When a complaint to my office relates to this type of grievance, my general practice is to refer the matter (at least in the first instance) back to the agency concerned to be addressed through its internal grievance mechanisms or through procedures for reporting alleged breaches of the relevant Code of Conduct (where this is applicable).

The Code of Conduct provisions under the Public Service Act 1999 apply to employees of DIGO, DIO, DSD and ONA, while similar arrangements are separately established by determinations made under the ASIO Act and the Intelligence Services Act 2001 for employees of ASIO and ASIS respectively.

Having said that, I do have some flexibility in regard to situations where:

  • the complainant has exhausted his or her avenues for internal redress and there are related policy or procedural matters that I can usefully pursue, and/or
  • a complainant is a former, rather than a current, employee.

This flexibility is particularly important to former employees because their ongoing secrecy obligations usually mean that they cannot approach any other complaint handling body.

I conducted three preliminary inquiries and one administrative inquiry during the reporting period into employment-related grievances from ex-employees of ASIO, as follows:

  • two matters dealt substantially with the complainant’s difficulties in pursuing compensation claims, and
  • two matters related to the complainants suffering illnesses which they attributed, at least in part, to issues of alleged workplace bullying. One of these inquiries was still ongoing at the conclusion of the reporting period.

I have reviewed ASIO’s policy regarding workplace bullying and the avenues for employees to raise concerns of this nature. I believe that the policy is sound and provides all employees with clear guidance on acceptable behaviour and the range of options available to staff to address areas of concern.

Both the ASIO Staff Association and senior management have assured me that agency staff are made aware of their responsibilities in this regard, and that there is not an agency-wide culture of accepting workplace bullying.

Assessment of security equipment

I received one complaint about the procedures that ASIO applies to the listing of equipment in the Australian Government Security Equipment Catalogue (SEC).

At the conclusion of my preliminary inquiry, I was satisfied that the relevant procedures (which require equipment owners to apply for SEC listing and to provide samples of their equipment for evaluation and possible testing) are appropriate. The procedures ensure that:

  • each equipment owner/supplier who applies for listing is treated fairly, and
  • Commonwealth entities who purchase the products listed in the SEC can be certain that the products are fundamentally sound, suited to their purpose, and can be readily supported.

Immigration related complaints

As mentioned in the “Significant Issues” section at the beginning of this chapter, there has been a noticeable increase over the past two reporting periods in the number of complaints received about the timeliness with which ASIO processes security assessments for immigration applications.

A total of 193 new complaints were received in this reporting period. This compares with 71 complaints received in 2006–07 and 26 such complaints in 2005–06.65

The complainants varied from permanent protection visa applicants to skilled migrant and spouse visa applicants. (See Table 3 of Annex 1 for a detailed breakdown).

These complaints were variously lodged by the complainants themselves, migration agents, family members or Members of Parliament acting on their behalf, or following a referral by another government agency such as the Commonwealth Ombudsman.

All of the 193 new complaints received during 2007–08 were handled administratively.

The administrative processing of these complaints means that my office makes an informal inquiry of ASIO to verify that the case has actually been referred to ASIO by DIAC, to determine the length of time a request for a security assessment has been with ASIO, and to receive a brief outline of the nature of the case. Based on this I can, in many cases, make a judgement on the legality or propriety of ASIO’s handling of the case.

During this reporting period my administrative inquiries revealed a small but significant number of cases where administrative errors within ASIO had caused considerable delays in the completion of security assessments.

While this was regrettable, I was able to engage the relevant functional area of ASIO about the causes of these errors. In response ASIO has improved its management systems to ensure the better tracking of immigration related cases, so as to reduce the risk of similar errors occurring in future.

ASIO also initiated an increase in staff resources allocated to liaise with my office on these matters. This has resulted in improved responsiveness to my queries over the year, and also provided a greater level of detail to me on the circumstances of each case.

I am appreciative of the efforts of the ASIO officers who assisted my office during 2007–08, as it has allowed me to respond to complainants more quickly and fully than might otherwise have been the case.

In those cases where a judgement cannot be made based on ASIO’s response to an administrative inquiry, preliminary or full inquiries can be commenced to investigate the matter further.

In the reporting period I commenced two preliminary inquiries into immigration related cases (relating to complaints which had originally been received in 2006–07).

The first case highlighted some deficiencies in communication between DIAC and ASIO that have since been addressed under a project to enhance the IT connectivity between these agencies.

In the second case the applicant’s security assessment was not straightforward and had therefore taken longer to progress than would otherwise be the case. Having said that, the case had been additionally delayed by an avoidable administrative error that led to processing delays.

Footnotes

51. Attorney-General’s Guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions of obtaining, correlating, evaluating and communicating intelligence relevant to security (including politically motivated violence). Available on the Australian Security Intelligence Organisation website.
(accessed 7 August 2008). The Guidelines are also at Annex 7 of this report.

52. Clause 10.4 of the new guidelines.

53. Clause 6.2 of the guidelines.

54. Mr Ul-Haque was charged with offences under s102.5(1) of the Criminal Code. That is, “between 12 January 2003 and 2 February 2003, in Pakistan, he did receive training with respect to combat and the use of arms from a terrorist organisation, namely Leshkar-e-Taiba, ... knowing that the said organisation was a terrorist organisation.”

55. R v Ul-Haque [2007] NSWSC 1251.

56. ibid., paragraphs 94–99.

57. ibid., paragraphs 100–103.

58. ibid., paragraphs 104–106.

59. Annex 1 Table 3 of the IGIS Annual Report 2006–07 noted that 74 immigration related complaints had been handled administratively that year. This included three matters carried over from the previous reporting period.

60. IGIS Annual Report 2006–07, p.43.

61. IGIS Annual Report 2006–07, p.44.

62. IGIS Annual Report 2003–04, Canberra, October 2004 pp. 15–18; 2005–06, Canberra, October 2006 pp. 11–12.

63. Australian Federal Police website (accessed 29 August 2008).

64. IGIS Annual Report 2006–07, p.28.

65. Annex 1 Table 3 of the 2006–07 IGIS Annual Report noted that 74 immigration related complaints had been handled administratively that year. This included three matters carried over from the previous reporting period.

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