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Australian Security Intelligence Organisation

• What ASIO does
• New Director-General of Security
• Monthly meetings and special briefings
• Training
• ASIO activities overseas
• Inspection activities
• Complaints and inquiries

What ASIO does

ASIO is Australia’s national security service. ASIO was founded in 1949 and is therefore currently celebrating the 60th anniversary of its creation.

ASIO’s 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 collect and evaluate intelligence on 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 the protection of the Commonwealth and the States and Territories and the people in them from:

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

It also includes carrying out 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 (AGG’s) and the ASIO Act, can be found on ASIO’s Internet homepage located at http://www.asio.gov.au.

ASIO also produces an unclassified annual report to Parliament.

New Director-General of Security

ASIO experienced a significant leadership change when the then Director-General of Security, Mr Paul O’Sullivan, departed ASIO on 28 February 2009, in preparation for his appointment as Australia’s new High Commissioner to New Zealand.

Mr O’Sullivan was appointed as the Director-General of Security on 11 July 2005 and served in that demanding role for nearly four years.

Mr David Irvine AO commenced as Mr O’Sullivan’s replacement as Director-General of Security on 30 March 2009.

I have interacted with Mr Irvine for an extended period in his previous role as Director-General of ASIS and I have found him to be candid and forthright and a strong supporter of the role and functions of this office.[32]

I am pleased to say that this has continued in our regular meetings since Mr Irvine commenced at ASIO.

Monthly meetings and special briefings

I have continued to have regular monthly meetings with senior ASIO personnel, as I have done since August 2007.

Our monthly meetings provide a forum for 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. This includes ASIO updating me 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 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.

I met with senior ASIO officers numerous times during the year, in addition to our monthly meetings, to discuss issues such as the AGG’s, 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 some specific operational matters.

Training

During 2008-09 my staff and I delivered 18 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. This training provided useful knowledge and understanding of the structure, operation and focus of ASIO.

ASIO activities overseas

It is a common misconception that ASIO’s activities are strictly limited to Australian territory.

While much of ASIO’s work does, indeed, have a domestic focus, ASIO’s capacity to obtain, correlate, evaluate and communicate intelligence information that is relevant to security is not limited by geography.

As a result of the dynamic nature of the global security environment, the proportion of ASIO’s activities with an overseas element has increased, consistent with its mandate.

So as to ensure that appropriate governance and arrangements are in place in relation to ASIO’s overseas activity, I have asked to be kept informed of developments in this area.

Inspection activities

General scope

ASIO has received increased funding over recent years to allow it to respond promptly and effectively to the challenging security environment in which it operates.

In recent years ASIO’s continued growth has necessarily led it to reconsider and adjust its internal structures to better meet its needs, particularly in a period of growth. ASIO has also increased staff numbers considerably, in a range of employment areas.

ASIO’s growth has also led naturally to an increase in the volume of material produced by ASIO that is reviewed by my office.

Although the total number of inspection visits conducted by this office did not increase markedly in 2008-09, it is a fact that more staff from my office typically attend each inspection, and that some inspection activities are longer, commensurate with the larger workload and the complexity of some of the issues which are presented for review.

Range of current and new inspection activities

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 and the exchange of information about Australian persons with foreign liaisons.

My office also conducted a new inspection project, relating to authorisations for access to prospective telecommunications data.

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

Retention of intelligence information on currently serving parliamentarians

My 2007-08 annual report noted that I had commenced but not yet completed an inspection activity into the retention of intelligence information on currently serving parliamentarians. [33]

I stated in the above report that the preliminary outcome of the activity was that there was very little of  concern identified.

In early 2008-09 I made some suggestions to the then Director-General of Security, Mr O’Sullivan, to tighten procedures in relation to the retention of intelligence information on currently serving parliamentarians.

I wrote to ASIO about this matter again in June 2009, to advise that I was disappointed that one suggestion in particular I had made (which I considered to be reasonable) had not been accepted.

I will continue to pursue this suggestion.

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 an “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:

• prepare a submission which is ultimately to be put to the Attorney-General
• ensure that all of the information which is put forward is 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 my 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 made by ASIO. This objective was achieved in 2008-09, with the exception of some documentation generated late in the reporting period which was reviewed at the first available opportunity in 2009-10.

The inspections go beyond simply ‘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.

On the basis of the inspections of warrant documentation in this reporting period, I can report that the quality of the warrant requests and other warrant related documentation which goes to the Attorney-General has been of a consistently high standard.

Our inspections revealed in each case where a special powers warrant was issued in 2008-09, 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 (with one exception) 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 this office.

As I have commented in past annual reports, I have a particular interest in ASIO’s use of B-Party warrants.[34]

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 or directly used by that person.

As a result of my office’s inspections I am satisfied that this type of warrant is used sparingly, and only where circumstances dictate that it is necessary.

When B-Party warrants were sought, I was satisfied that all 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.

Execution of warrants

I have asked for advice from ASIO on how it currently assesses whether certain categories of warrants have been executed, or not, in situations where this is not immediately obvious.

Unauthorised telecommunications interception

During 2008-09 there was only one instance where an error or fault within ASIO’s control had the potential to cause unauthorised collection to occur, but such collection did not eventuate. This compares with four instances during the previous reporting period.

ASIO advised me of one interception under warrant where the data was not delivered correctly. The interception was never received by ASIO and there was no recording of the intercept.

Interception of data authorised by one warrant was received by a person not listed as a person authorised to exercise the authority of the warrant, on the relevant instrument signed under section 12 of the Telecommunications (Interception and Access) Act 1979.

ASIO advised me of this and reported to the Attorney-General on the matter. The intercepted material was destroyed and the authorisation list was subsequently amended.

There was one instance where the actions of bodies external to ASIO resulted in inadvertent unauthorised collection occurring. Intercept received was destroyed. This compares to five such instances in the previous reporting period.

There were a few instances where warrants were sought to access the content and associated data relating to inactive or disconnected numbers. These warrants were amended or revoked when the error was discovered.

While any instance where unauthorised interception occurs, or has the potential to occur, is serious, I am pleased with the very low number of such instances during the reporting period.

The legal framework under which warrants are issued is complex, and given the overall number of services intercepted and the risk that some clerical or administrative errors will occur, the number of unauthorised intercepts is commendably very low.

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 2008-09 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 expiry or revocation. There is no mandatory deadline for reports on the outcome of the other forms of warrants available to ASIO but ASIO seeks to apply the same standard to all warrants.

With one exception, I found the provision of reports to the Attorney-General on the usefulness of each warrant to have been discharged in a timely manner.

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. A summary of the main features of Division 3 of Part III is provided in the IGIS Annual Reports for 2003-04 and 2005-06. [35]

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 2008-09.

Authority to investigate – procedures

The then Attorney-General, the Hon Philip Ruddock MP, issued a set of guidelines to ASIO in October 2007 which specifies in general terms the circumstances in which ASIO may obtain intelligence relevant to security.[36]

Although issued by an Attorney-General of the former Government these guidelines remain extant.

The AGG’s are supplemented by detailed internal policies and procedures, the application of which is monitored by this office.

Taken together, the AGG’s and ASIO’s internal policies and procedures require that before an investigation can be commenced a formal and auditable authorisation process must be followed.

ASIO released revised internal policy guidance on the conduct of security investigations late in the reporting period. I was consulted during the development of this policy and I generally support the changes contained in this revised guidance.

My staff have been briefed on the application of the new policy and although the policy was still in the process of being implemented at the end of this period, early indications are that it will have a positive impact on the conduct of investigations.

The work classification level within ASIO at which an approval for an investigation 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 2008-09 my staff conducted 27 separate reviews of investigation approvals, compared to 26 inspections in 2007-08.

Although the total numbers are similar, there was a tendency for each inspection visit in 2008-09 to be longer in duration and more complex in nature than in previous years, due to the increased volume of work generated by ASIO.

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
• whether 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.

Authority to investigate – inspection results

While detailed discussion of specific investigations is not possible, I am able to make general comments on the issues noted in the course of the inspection activities.

Overall I was satisfied with the manner in which the authority to investigate process worked during this reporting period.

The authorities reviewed were generally of a high standard, and in cases where this was especially evident my staff and I would identify and acknowledge examples of good practice.

My staff and I also provided feedback to encourage improvement in standards and consistency in approach across ASIO, in instances where we thought that this was appropriate.

Of the many submissions seeking approval to conduct an investigation which we examined, my staff only identified one instance which did not demonstrate that there was a clear nexus to security. This approval was subsequently reviewed and revoked.

As identified in previous reports, we continued to focus closely on the comments and guidance provided by senior ASIO officers when approving investigations.[37]

Our inspections in 2008-09 revealed that some authorising officers continued to use a standard set of words when placing limits on particular investigative activities.

I have consistently encouraged authorising officers to avoid this approach and to demonstrate through the written guidance they provide, that they have considered the request to conduct an investigation on its merits and set appropriate limits on the investigation accordingly.

No major systemic concerns were identified, although instances of minor procedural defects were noted, for example, human errors when entering dates, the creation of duplicate authorities, and limited supporting documentation placed on file.

The AGG’s require each approval which is issued to 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.

Use of Prospective Telecommunications Data

In my previous annual report I provided some background information on the implications for ASIO and my office of the passage of the Telecommunications (Interception and Access) Amendment Act 2007.[38]

I reported that following implementation of the above Act, very senior managers in ASIO would be in a position to issue authorisations requiring telecommunications carriers or carriage service providers to provide ASIO with prospective telecommunications data for the duration of each authorisation of this kind (i.e. for a maximum of 90 days).

During 2008-09 my staff began to inspect all instances where authorisations of this kind were sought and obtained, in order to check that all legal obligations associated with the acquisition of this data were being met.

This new inspection activity is consistent with a recommendation made by the Senate Standing Committee on Legal and Constitutional Affairs in its report into the Telecommunications (Interceptions and Access) Amendment Bill 2007, dated 1 August 2007, in which it proposed that:

“… the Inspector-General of Intelligence and Security incorporate into his regular inspection program oversight of the use of powers to obtain prospective telecommunications data by the Australian Security Intelligence Organisation.” [39]

The inspections undertaken by my staff revealed that, apart from some relatively minor technical and administrative glitches associated with establishing this new investigative tool for use, requests for authorisation to access prospective telecommunications data were properly made and endorsed at appropriately senior level within ASIO.

On the basis of these inspections I am satisfied that ASIO is using this new facility in a suitable manner.

These inspections will now be built into our forward program and will be conducted on a regular and periodic basis into the future.

Information obtained from AUSTRAC

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. ASIO and IGIS are each “designated agencies” for the purposes of the AML/CTF Act.

This office and ASIO have each been party to separate Memorandums of Understanding (MOUs) with the Australian Transaction Reports and Analysis Centre (AUSTRAC) since 2000.

The AUSTRAC-ASIO and AUSTRAC-IGIS 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.

The key difference between this type of access to financial information and other forms of financial inquiries is that ASIO is able to access this information online rather than needing to formulate an external request and receive extracted information.

For this reason my office devotes resources to ensuring that the AUSTRAC databases which ASIO has lawful access to are not inappropriately accessed and that the searches which are done are suitably focussed.

The inspection activity conducted by my office has over a number of years found ASIO’s access to relevant AUSTRAC databases to be appropriate.

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

I provided such a compliance certificate to the Attorney-General on 13 October 2008, in respect of 2007-08. In providing the above certificate I informed the Attorney-General that I did not identify any substantive concerns but in a very small number of instances the searches conducted by ASIO staff were wider in scope than had been approved.

During 2008-09 my staff conducted several days of AUSTRAC related inspections in ASIO every three months. These inspection visits included checks conducted for intelligence and vetting purposes and the passage of AUSTRAC information to and from ASIO. The vetting checks conducted related to persons who have applied for or hold Commonwealth agency positions that require the highest level of security clearances and have consented to financial checks.

My staff again identified a small number of searches which were conducted by authorised ASIO staff that were broader than had been approved and raised a number of policy questions about the approach to conducting vetting checks.

ASIO has responded positively to the matters raised during the reporting period, including commencing the development of a policy framework for undertaking vetting checks.

I intend completing the annual compliance certificate to the Attorney-General for 2008-09 in the first few months of 2009-10. This certificate cannot be provided until we audit searches conducted in the last quarter of the reporting period (for which AUSTRAC summaries are not available until several weeks after the conclusion of the period in question).

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 had been my practice until 2007-08 to periodically review the registers which ASIO maintains which record all instances where an assumed identity has been officially allocated to an ASIO officer for operational purposes.

As indicated in my previous annual report, I ceased inspecting these registers because of the high standards that ASIO had displayed in ensuring that they were accurate and up to date, and because our inspections found few if any irregularities.[40]

As an alternative to directly inspecting these records, I instead obtain from ASIO:

• copies of the ASIO internal audit reports on compliance with the assumed identities provisions of the Crimes Act 1914 and the Law Enforcement and National Security (Assumed Identities) Act 1988 (NSW), and
• a certificate at the end of the financial year which satisfies the requirements of section 15XUA of the Crimes Act 1914.

I am satisfied on the basis of the provision of these documents that ASIO is fulfilling its legal obligations, and that the issuing and revocation of assumed identities is very tightly controlled.

Exchange of information with foreign liaisons

In 2006-07 I commenced a new inspection project which examined the manner in which ASIO shares information with foreign intelligence services and overseas law enforcement agencies. [41]

My office continued this inspection activity during 2008-09 by examining the relevant records from three particular ASIO liaison offices, over a nine month period.

While I have been generally satisfied that the internal policy guidance which ASIO developed in 2006 provides a sound basis for the passage and receipt of information, inspection of these records in this reporting period revealed that there were some deficiencies in record keeping.

ASIO must maintain appropriate records of such decision making and approvals. In the absence of adequate records, including a decision maker’s views on each of the relevant considerations contained in the policy, my concern is that it is not possible to be satisfied that the policy is being given proper and full effect.

It is the potential gravity of the consequences, in some circumstances, of passing information to foreign liaisons that means documenting the basis for each decision is of particular importance.

Should a situation arise where it is alleged that ASIO has been complicit in the torture or ill treatment or rendition of a person, ASIO will be required to provide evidence of any decisions it took to pass information and the compliance or otherwise of those decisions with the policy.

I will pursue this issue in the next reporting period, and continue with inspection work focussed on whether ASIO has 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.

ASIO and law enforcement agencies

ASIO and law enforcement agencies in all Australian jurisdictions have significant interaction. Although the mandate of these agencies differs, there is often a nexus between persons who are planning for or engaged in criminal activities, and persons of security interest.

Close cooperation is also necessary in order to plan effectively for major events where Australia has obligations such as those with respect to the protection of visiting foreign dignitaries.

Whenever my 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.

Complaints and inquiries

As at 30 June 2008 I had one full inquiry and one preliminary inquiry in train into complaints about ASIO which were carried over into this reporting period.

The preliminary inquiry was completed early in the reporting period while the full inquiry, which was into certain aspects of an investigation by ASIO into Mr Izhar Ul-Haque was completed in November 2008.

During 2008-09 I initiated one new full inquiry and seven preliminary inquiries into matters pertaining to ASIO.

In addition to the preliminary and full inquiries, the office received 222 other complaints specifically about ASIO from individuals seeking to reopen former complaints, or making new complaints raising specific concerns. This compares to 249 such complaints in 2007-08

Of these 222 new complaints which were handled administratively, 153 were concerned with the timeliness with which ASIO processed immigration related security checks. My handling of these complaints is discussed elsewhere in this chapter.

IGIS inquiry into ASIO’s dealings with Mr Izhar Ul-Haque

In my previous annual report I indicated that I had initiated a significant ‘own motion’ inquiry into the interactions of Mr Izhar Ul-Haque with ASIO.[42]

This inquiry was carried over into 2008-09 and finally concluded on 12 November 2008.

By way of background, Mr Ul-Haque is an Australian citizen who, following investigations undertaken by ASIO and the Australian Federal Police, was arrested in April 2004 and charged with the offence of training with a proscribed terrorist organisation. At the time of his arrest Mr Ul-Haque was a 21 year old medical student.[43]

Mr Ul-Haque was brought to trial in October 2007 but the charges laid against him were withdrawn on 5 November 2007, after Justice Michael Adams, of the NSW Supreme Court, found certain evidence against Mr Ul-Haque to be inadmissible. Justice Adams’ reasons for his decision were publicly released several days later.[44]

In his decision Justice Adams made a number of very critical comments about the conduct of AFP officers and of two ASIO officers who were assigned the designators B15 and B16 when giving evidence at Mr Ul-Haque’s pre-trial hearings.

Given the critical nature of the comments made by Justice Adams about B15 and B16, and that a counter-terrorism prosecution had been effectively aborted, I considered that it was clearly in the public interest for me to examine these issues.

This inquiry necessarily required me to examine ASIO’s policy, procedures and general practices on the interviewing of persons of security interest.

After a lengthy and thorough inquiry, during which the parties with whom I dealt were legally represented, I ultimately concluded that there was no basis for me to refer any matter to relevant NSW law enforcement or prosecutorial authorities.

However, there were lessons for ASIO in what had occurred. I made nine findings and also put forward seven recommendations. These findings and recommendations are summarised in the box accompanying this text.

An unclassified version of my report into this matter is also available on the IGIS website.[45]

By the end of the reporting period I was satisfied that while my recommendations had not yet been fully implemented, ASIO was actively taking steps to do so.

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 in 2008-09 into an archive related matter which was concerned with the adequacy or otherwise of the transfer of historical cinefilm records to the VHS video format and the subsequent destruction of the original cinefilm in the early 1990s.

Given that the action concerned had occurred over 15 years previously and I had conducted only a preliminary inquiry (rather than a full inquiry) I did not consider it appropriate or useful to make formal findings in this matter.

Instead, I made a number of inquiries of ASIO which assured me that its current practices are sound and that all remaining cinefilm is stored appropriately.

Further to this, I asked that a representative from the National Archives of Australia inspect the remaining cinefilm to confirm the adequacy of the current storage arrangements.

To assist my general monitoring of ASIO’s overall archives performance, The Director-General of Security provides my office with quarterly progress reports.

Concerns held by current and 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 etc.).

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 prospective or former employee 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 initiated one full inquiry into an employment related matter during 2008-09.

In accordance with the requirements of section 22 of the IGIS Act, I have provided a copy of my report on this inquiry to the Director-General of Security and the Attorney-General.

The details of this case are provided to select addressees as a classified annex to this report.

In addition to the above full inquiry, I also completed one preliminary inquiry during the reporting period that was carried over from 2007-08. That inquiry focussed on the handling of an employment-related matter from an ex-employee of ASIO.

I found that the handling of this grievance was imperfect, but not to the extent that it would invalidate the process or outcome of the investigation ASIO conducted.

While there were some administrative aspects of the internal processing of this matter that I believed could have been improved, they were not significant enough in or of themself to alter the findings in relation to the allegations.

As a consequence of this preliminary inquiry, I did suggest to ASIO that it may wish to consider the benefits of providing a more detailed response to complainants in the future. This can serve to reassure complainants that their concerns have been dealt with as thoroughly and as transparently as possible.

Complaints of alleged harassment by ASIO

I conducted two preliminary inquiries into allegations that ASIO had harassed a member of the Australian public. In both of these preliminary inquiries, I found no evidence that any ASIO officers had committed the alleged acts of harassment, or that they had been in the proximity of the locations at the times where the harassment was alleged to have occurred.

ASIO security assessments – immigration and passport 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, as required by its statutory obligations and internal procedures, so that ASIO can conduct security checks on these visa applicants.

This year there has been a decline 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, my office received a total of 153 new complaints of this kind in 2008-09, compared to 193 such complaints received in 2007-08. While this represents a 20% reduction over the previous year, it is still more than double the 71 complaints of this kind which I received in 2006-07.

I should point out that in around half the complaints my office receives, the matter has not actually been referred to ASIO, or it was referred but ASIO has already passed an assessment back to DIAC.

While I have handled most of these complaints administratively, I conducted two preliminary inquiries in relation to ASIO’s handling of immigration-related security assessments, one of which was raised with me by the Commonwealth Ombudsman.

The correspondence from the Commonwealth Ombudsman raised concerns about a delay in ASIO’s processing of a security assessment due to alleged poor communication between ASIO and DIAC.

The processes and procedures that appeared to have caused the delay had been superseded by new systems designed to overcome the previous communication concerns between ASIO and DIAC. However, a new complaint arising in late June 2009 suggests that there may be other ‘legacy’ matters of this nature, and I have raised this with ASIO.

My staff and I have met with ASIO senior managers during the year for discussions and briefings about ASIO’s handling of immigration-related security assessments. I would like to thank those ASIO officers who have contributed to the free flow of information and views between our respective agencies.

In accordance with the Australian Passports Act 2005, the Minister for Foreign Affairs may cancel or refuse to issue Australian passports on the basis of an adverse security assessment by ASIO. ASIO conducts these security assessments with respect of passport applications that are referred to them by the Australian Passport Office within the Department of Foreign Affairs and Trade.

I completed one preliminary inquiry in relation to a person who had previously had their passport cancelled seeking a new security assessment from ASIO. The outcome was that the complainant was advised to submit a new application for a passport through the Australian Passport Office. I understand that a passport was subsequently issued.

Inquiry into issues in relation to Mr Scott Parkin

During 2008-09 I followed up on the recommendation I made to ASIO in respect of an inquiry into issues in relation to Mr Scott Parkin in 2005.

This inquiry related to the treatment of Mr Scott Parkin, a US citizen in Australia on a temporary visa, who was detained and subsequently removed from Australia following an adverse ASIO security assessment.

In my report I recommended that the Director-General of Security should consider whether the 1990 Determination issued pursuant to section 37(4) of the ASIO Act, should be reviewed.[46]

ASIO has now commenced reviewing this determination and I am advised that the review will be completed in 2009.

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