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Australian Secret Intelligence Service

• What ASIS does
• Significant issues
• Inspection activities
• Complaints and inquiries

What ASIS does

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

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

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

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

So as to discharge its functions ASIS generally relies on human sources to collect relevant foreign intelligence. This intelligence information is then transformed into intelligence reports and related products which are then made available to key policy makers and select government agencies with a clear and established need to know.

The foreign intelligence collection priorities for ASIS and other members of the AIC are established in a planning document that is endorsed and regularly reviewed by the National Security Committee of Cabinet.

Further information about ASIS is available at http://www.asis.gov.au.

Significant issues

Change in Director-General ASIS

As touched on earlier in this report, the Attorney-General announced the appointment of the incumbent Director-General of ASIS, Mr David Irvine AO, as the new Director-General of Security on 25 February 2009, with the appointment taking effect from 30 March 2009.

Immediately prior to Mr Irvine’s departure from ASIS on 27 March 2009, Mr Steven Robinson AO was nominated by the Minister for Foreign Affairs to act in the position of Director-General of ASIS, pending permanent filling of that position.

Mr Robinson has worked in a number of senior level positions in the DFAT portfolio over many years. The outstanding service Mr Robinson has rendered in these positions was recognised in the Queen’s Birthday Honours List in June 2009, when he was made a Member of the Order of Australia.

I have had occasion to meet and speak with Mr Robinson in his capacity as acting Director-General of ASIS on a number of occasions and I am pleased to say that our interactions have been very productive to date.

Growth and expansion

ASIS, like the other AIC agencies, continued to experience growth during 2008-09.

The total appropriation made available to ASIS in the 2008-09 Commonwealth Budget was $199.2 million,[47] compared to $162.5 million in the 2007-08 Budget.[48]

Growth of this kind is not easily integrated unless it is well planned for.

I therefore sought and received regular updates on the rebalancing of structures and priorities within ASIS flowing from its growth, as well as briefings on recruitment, training, and accommodation issues.

I like to maintain an eye on relevant aspects of the organisational health of each AIC agency and do this by periodically seeking access to, or being briefed about, staff survey findings and results. I did so with respect to ASIS during 2008-09.

Special briefings

In seeking to fulfil my various duties as Inspector-General I have regular dealings with the Director-General of ASIS, his senior managers, and a range of less senior officers who hold key positions.

In addition to my office’s regularly scheduled inspection visits (which are described elsewhere in this chapter), I had a significant number of meetings with ASIS personnel during 2008-09.

I continue to appreciate the proactive way in which ASIS independently seeks to brief me when the need arises and the responsiveness of ASIS to my various requests for briefings.

The briefings covered a wide variety of issues ranging from personnel management issues to particularly sensitive operational activities.

Due to the inherent sensitivity of these subject matters I am limited in the extent to which I can make further comment in this publicly available report, but particular areas in which I maintain an interest are mentioned immediately below.

Contact with staff prior to overseas postings

A significant number of the briefings referred to above included meetings I had with ASIS officers prior to the commencement of overseas postings. The purpose of these meetings is to remind each ASIS officer of the role and functions of this office, and to stress the expectations being placed upon them.

I believe that these meetings serve an important purpose by reinforcing with ASIS officers that their actions are subject to on-going external scrutiny no matter where they are posted, and that they are obliged to conduct themselves in an appropriate manner at all times.

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

Inter-agency cooperation

During 2008-09 I was briefed on a number of projects where ASIS had developed opportunities to work closely with other agencies, both inside the AIC and in the wider Government sphere.

Inter-agency cooperation of this type is expected to expand over future years, in response to the dynamic global security environment, and the expressed desire of the Government for an integrated ‘whole of government’ approach to a range of issues.

I have particularly asked to be kept informed on range of associated matters such as governance arrangements.

Periodic roundtable meetings

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

I meet with ASIS staff involved in policy development, legal affairs and intelligence production in roundtable meetings of this kind approximately every six weeks.

I find these meetings to be of great utility as they involve discussion of practical issues and concerns at the desk officer level.

Training

During 2008-09 I delivered several presentations to ASIS’s leadership and new intelligence officer trainee programs, to explain the role and functions of my office and to talk generally about governance and accountability structures.

I also observed some elements of the intelligence officer training program, including self-defence and weapons training. This was useful in providing assurance about the quality of the training being provided to ASIS staff.

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

Inspection activities

Range and scope

Inspection activities undertaken during the reporting period included:

• reviewing all MAs issued to ASIS
• reviewing all submissions made to the Minister for Foreign Affairs
• reviewing and reconciling weapons related authorisations
• regularly inspecting current operational files, and
• conducting sampling and spot audits of ASIS’s compliance with its privacy rules.

Review of Ministerial Authorisations

Section 8(1) of the ISA requires the Minister for Foreign Affairs to issue a written direction to the Director-General of ASIS setting out the circumstances when ASIS must obtain the Minister’s authorisation to undertake certain activities.

During 2008-09 six inspections were conducted to ensure that all MAs issued by the Minister for Foreign Affairs conform to the requirements of the ISA and the terms of the Ministerial Directions to which ASIS is subject.

Several issues were identified in these inspections where clarification or comment was sought from the Director-General of ASIS.

In three instances it was considered prudent for specific instruments of authorisation to be re-issued to remove any possible doubt as to their validity. On two other occasions I engaged with ASIS on the practical implications of an MA reaching its expiry date before a replacement MA was approved.

Most of the above issues arose from unintended clerical oversights or minor technological glitches which were very promptly attended to once ASIS was alerted to the problem.

Overall I was satisfied that the MAs examined by my office during the reporting period were properly made out and in conformity with the requirements of the ISA.

Ministerial submissions

Whenever my staff and I conduct a review of MAs, we also review all of the other submissions which the Director-General of ASIS has provided to the Minister, in the period since our previous inspection.

By regularly reviewing this material I am able to be kept informed of a wide range of operational and other matters about which it is appropriate for me to know.

This inspection activity informs some of our other inspection activities or encourages me to obtain more detailed information about issues of particular sensitivity.

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

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

I had visibility of every authorisation which was issued during this reporting period.

For security reasons I cannot report the precise number of authorisations which were issued, but I can advise that it was not an excessive number, and in my view each request for an authorisation was soundly based and consistent with the requirements of ASIS.

Clause 3 of Schedule 2 of the ISA also requires the Director-General to provide me with a written report should a weapon allocated to an authorised person for self-defence purposes be discharged in specified circumstances (other than during training).

I am satisfied that the powers afforded to ASIS under Schedule 2 of the ISA are not being misused or abused.

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

During 2008-09 I continued to devote significant resources to regularly reviewing ASIS’s operational case files.

The review of ASIS’s operational case files is typically conducted by two of my staff over two days per month and, while the task is an ongoing one, I am keen to cycle through as many files as possible each year in a targeted way.

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

For the first half of the reporting period I continued a consultancy arrangement with my immediate predecessor, Mr Bill Blick AM PSM, to assist in this work.[49]

As a result of increased staffing in the office in 2009 I have more recently been able to fully allocate this task to staff employed on an ongoing basis.

While I cannot specifically report the nature and range of issues which have come to light as a result of this particular inspection activity, I can assure readers of this annual report that the examination of this material is rigorous and thorough.

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

Privacy rules

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

On 17 September 2008 the Hon Stephen Smith MP issued new privacy rules to ASIS.[50]

Apart from some minor formatting changes the rules are identical to those which had been in effect since October 2001 (coinciding with the coming into effect of the ISA), but are now provided under the current Minister’s authority.

The ASIS privacy rules are important because ASIS generates and receives a significant amount of secret intelligence information, some of which refers to Australian persons.

Intelligence information of this kind can only be included in ASIS reporting if the information serves a clear purpose linked to Australia’s national interests.

If it is determined that intelligence information about an Australian person should be included in a report, it can then only be circulated to appropriately cleared addressees with a demonstrated need to know this information.

In past years I have devoted significant resources to regularly reviewing every report which either directly or indirectly referred to an Australian person, to ensure that such reporting was properly justified in accordance with the requirements of the ASIS privacy rules.

As outlined in my previous annual report, I suspended this review activity in April 2008 because I have confidence in ASIS’s internal compliance mechanisms and continuing the activity, in such an intensive manner, did not represent best use of OIGIS resources.[51]

I reviewed this situation in 2008-09 and made an assessment that ASIS continues to have a strong compliance culture, and that staff across the spectrum of its activities are well schooled in their legal obligations. I therefore decided to continue conducting sampling and spot audits, rather than the full compliance checking in which the office was previously engaged.

During 2008-09 the sampling approach and occasional spot checks identified no issues of particular concern.

Use of assumed identities

Section 15XUA of the Crimes Act 1914 requires ASIS to, as soon as practicable after 30 June each year, provide me with a report for the preceding 12 months on:

• the number of instances in which formal alternative identity documentation has been obtained
• a general description of the activities undertaken by approved officers and approved persons when using their assumed identities, and
• whether or not any fraud or other unlawful activity was identified by the agency when auditing use of the assumed identity documentation.

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

I noted nothing untoward or of concern with respect to the use of assumed identities by ASIS personnel during 2008-09.

Future access to AUSTRAC data

ASIS is a designated agency for the purposes of the AML/CTF Act, and as such entered into an MOU with AUSTRAC in 2007-08.[52]

The AUSTRAC-ASIS MOU sets out the terms and conditions under which ASIS may obtain direct access to financial transaction reporting information via various AUSTRAC databases.

There have been some delays in ASIS obtaining direct access of the kind foreshadowed above but the issues which have prompted these delays are being progressively worked through.

I will commence an inspection program to monitor ASIS’s compliance with its various obligations under the referenced MOU in the coming reporting period. This inspection activity is likely to be similar in kind to the checks presently undertaken with respect to ASIO.

Complaints and inquiries

In 2008-09 my office was contacted by eleven persons with queries or concerns about ASIS. All of these matters were handled administratively.

I did not initiate any preliminary or full inquiries into the activities of ASIS during the reporting period, either as a result of these contacts or for any other reason.

 

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