Australian Security Intelligence Organisation
40. I wrote to the Director-General of Security proposing a program of inspections involving the following categories of ASIO activity:
- warrant operations
- authorities to investigate
- provision of information to, and liaison with, law enforcement agencies
- compliance with the Archives Act
41. The Director-General and I agreed that following each inspection activity I or my staff would discuss any concerns with an appropriate senior manager or liaison officer. Any concerns needing to be put in writing would be addressed to the Director-General. In addition I have made a practice of following up such discussions with a letter outlining any issues raised during the inspection, to which in each case ASIO has provided a response.
42. We also agreed procedures that would operate should I form the view that any matter arising from an inspection needed to be brought to the attention of the Attorney-General or the Prime Minister. No such matters arose during the reporting year.
43. This program involves regular inspections by me or my staff of documentation produced by ASIO for the Attorney-General in support of proposals for the use of special powers, including intercepting telecommunications, using listening devices, entering and searching premises and intercepting mail.
44. These inspections are carried out approximately every two months at ASIO's central office and when I or members of my staff visit state/territory offices. In the reporting period we inspected documentation for approximately 75 per cent of all warrants issued, including a number previously inspected where warrants had been renewed. We expect to examine documentation for all warrants issued in the next reporting period.
45. In all cases reviewed the inspections revealed a high level of concern on the part of ASIO to ensure that the appropriate preconditions for the issue of warrants existed and that the Attorney-General's needs for reporting on the results of warrant operations were satisfied with due attention to detail. In no case did I consider that ASIO had insufficient justification for seeking the warrant.
46. In one case ASIO brought to my and the Attorney-General's attention an unintentional breach of the conditions of a warrant. This matter did not come to attention as a result of an inspection because it occurred between inspections. It is to ASIO's credit that it took timely action to ensure that I and the Attorney-General knew of the matter. It also took prompt remedial action.
47. During the course of a warrant inspection it became apparent that ASIO had instituted an arrangement with the foreign intelligence service of a country with which Australia has close co-operative intelligence arrangements, for translation by that service of the product of telephone interception material obtained by ASIO under warrant. The discussions with the co-operating service had included acceptance of the need for precautions in relation to the privacy of Australian-sourced material.
48. After obtaining further details of this arrangement I wrote to the Director-General informing him that I saw no difficulty in principle with use of foreign translators subject to ASIO being satisfied that no suitable translators were available from domestic sources. It was important, however, to ensure that adequate safeguards were in place to protect the substance of the intercepts from use by foreign services. In order to accomplish this there ought at minimum to be a written agreement between the two services setting out the basis on which the assistance would be provided and detailing the safeguards for the material. Furthermore, ASIO should inform the Attorney-General of its intention to activate the arrangement at the time of seeking the relevant warrant. ASIO still had this matter under consideration at the close of the reporting period.
Authorities to investigate
49. The "authority to investigate" (ATI) process involves applications by ASIO staff to more senior officers for authority to conduct up to three levels of inquiry, of increasing intrusiveness, in relation to individuals or organisations. ASIO keeps records of these authorities and I have instituted regular checks of those records and the files on which the investigative activity resulting from the issue of ATIs is recorded.
50. During any one year I or my staff will examine all files in ASIO's central office which relate to activity undertaken pursuant to ATIs. We also sample such files in state/territory offices during our periodic visits to those offices.
51. During the reporting period ASIO undertook a major review and rationalisation of the ATI process. This was necessary because of some uncertainty within the Organization about the precise nature of inquiry for which authority needed to be sought. ASIO officers are very cautious about engaging in investigative activity without proper authority and there has been a tendency in some cases to invoke the full formalities of the ATI process even for the most basic inquiries such as checking a person's details in the telephone directory.
52. The revised arrangements which were being implemented towards the end of the reporting period strike a better balance between the need to protect people's privacy and the sensible operational needs of ASIO.
53. Inspection of the files on which ATIs are placed revealed no departures from appropriate standards. One issue which arose as a result of these inspections was the level of protection within ASIO for material about individuals whose activities may not be of security concern but which ASIO collects as an incidental result of other inquiries. In some cases this could be personal information which has a legitimate place in the context of the whole investigation but which may not be of immediate or obvious security interest. For example, if ASIO is engaged in surveillance of an individual who is of security interest it may be necessary also to record details of people who come in contact with the individual or who reside, perhaps temporarily, in adjacent premises.
54. In the nature of such operations it may be impossible to assess with certainty the relevance of this information to security or at what time such significance may cease to exist. A policy requiring removal of the information from the files, therefore, could have unforeseen effects on future investigations and it would be simplistic to recommend such an approach. On the other hand it would be inappropriate for such records to be available at large within the agency. I have therefore been concerned to satisfy myself about the security with which ASIO protects such records within the Organization to ensure that they are used strictly for the purpose for which the information was collected. Those inquiries have made clear that ASIO takes its responsibilities in relation to security of such records very seriously and has in place proper safeguards against unauthorised access and use. My office will, however, continue to monitor the situation as we inspect the file records.
Provision of information to law enforcement agencies
55. In periodic visits to ASIO state/territory offices I and my staff examined the records ASIO maintains of instances in which it exchanges information with law enforcement agencies. We found those records to be carefully maintained; sufficiently detailed for us to conclude that the exchange of information which occurs is necessary for the performance of the respective functions of the organisations concerned; and demonstrating that the exchanges are not in breach of the relevant provisions of the ASIO Act. I also took the opportunity when visiting state/territory offices to discuss with senior police officers their experience of the reciprocal arrangements. They reported a good level of cooperation with ASIO, with appropriate regard for the respective functions of each organisation.
Archives Act compliance
56. On several occasions I and my staff visited ASIO headquarters to discuss with relevant staff ASIO's compliance with its obligations under the Archives Act.
57. The demand by researchers and members of the public for archives material means that ASIO has a relatively heavy workload, for its size, compared with other Commonwealth agencies.
58. This poses significant resource challenges and in recent years ASIO has sought to improve its performance on handling archives requests by increasing the resources devoted to them, changing its methodology for dealing with requests, and improving liaison with the National Archives of Australia.
59. In order to obtain more information about ASIO's handling of requests
I decided to examine ASIO's handling of a series of requests which involved examination and decision making on files relating to surveillance of Communist Party of Australia activities in the 1950s and 1960s.
60. ASIO's approach in relation to release of material on such files is cautious, since it does not wish to jeopardise its capacity to obtain assistance from members of the Australian community in relation to its ongoing functions. In most cases, therefore, it prefers to delete names and other identifying details of human sources before releasing documents such as records of meetings of party branches.
61. It justifies this on the basis that if such details were released, even after 30 years, it could no longer give binding undertakings to human sources that their activities would be protected. Its capacity to obtain such cooperation would be significantly reduced as a result.
62. In examining the relevant files I took the approach that this policy had considerable validity, but each proposed deletion needed to be tested carefully against the policy. This process resulted in ASIO agreeing to some changes to its initial decisions. My overall conclusion, however, was that the policy is applied with due regard to the need for people to be able to obtain sufficient information about the operations of ASIO, pursuant to the provisions of the Archives Act. Individual applicants who disagree with a decision to seek exemption are able to have the decision reviewed by the Administrative Appeals Tribunal.
63. The Director-General of Security receives quarterly reports on the performance of the Archives unit within ASIO and my office has access to these. They show continuing improvement in ASIO's performance in achieving targets it sets itself for responses to Archives Act requests.
64. In last year's report I mentioned that it is not the purpose of this office to provide a back door method whereby people, by complaining to the IGIS, can establish whether they or their activities have attracted the attention of Australia's intelligence and security agencies.
65. An inquiry always involves obtaining information from the agency concerned. When we undertake an inquiry or a preliminary inquiry, therefore, we have to be circumspect in any reassurance we give complainants. Often the agency will have no involvement with or interest in the complainant, but whether or not it does we will not reveal the fact unless exceptional circumstances exist which would justify doing so, and with the agreement of the agency head that there is no danger to security
66. There are, however, complainants whose concerns are patently imaginary. Usually such people believe, without any evidence, that an agency has them under surveillance or is trying to influence their thought patterns by the use of technology. They may hear messages which are directed to them alone. Invariably these are people who could not be of any interest to the security and intelligence agencies and there is no basis for conducting even a preliminary inquiry.
67. In such cases I see no reason not to be explicit. We therefore explain to such complainants that Australia's intelligence and security agencies are required to act within the law and that various checks and balances exist, including the IGIS, to ensure that they do so. We tell them that we see no reason why they should attract the attention of the agency (usually ASIO); that complaints such as theirs have been investigated over the years and invariably have been found to be baseless; and that we do not believe there is any useful purpose to be served by taking up their concerns.
Complaints and Inquiries
68. During the reporting period 14 complaints about ASIO were dealt with administratively, without proceeding as far as a preliminary inquiry.
69. The office also conducted inquiries into 12 new matters plus one which was carried over from the 1997-98 reporting period. Of these 13 cases, three were pursued as full inquiries while 10 were dealt with as preliminary inquiries
(see Annex 3).
70. A preliminary inquiry allows the Inspector-General to conduct a quick review of a complaint, to determine whether the issues raised fall within the jurisdiction of the office and to address complaints where the use of formal powers is considered unnecessary. A full inquiry allows the Inspector-General to use the complete range of statutory powers in the IGIS Act.
71. One inquiry resulted in a report to the Attorney-General (paragraph 90) in which I recommended legislative action. The recommendation did not arise from any deficiency or action by ASIO but a legislative inadequacy which should be rectified. No other inquiries resulted in reports before the end of the reporting period.
72. In conducting inquiries I sought briefings on a range of subjects, as well as access to files and to individuals. The Director-General of Security met all such requests. It is evident from his discussions with me and his supportive approach to inquiries that the Director-General is genuinely committed to accountability for the Organization, and to keeping its professional standards as high as possible.
73. Some of the complaints dealt with during the reporting period are summarised below.
Did ASIO break into a house and disturb its contents?
74. In July 1998, a person claiming to be the widow of a former ASIO officer wrote stating that her house had been broken into and some of her personal effects had been disturbed. The complainant wondered whether ASIO might have been involved in this incident.
75. Given that the complainant gave sufficient background details to suggest that her late husband had indeed worked for ASIO, I initiated a preliminary inquiry.
76. Several weeks later the complainant wrote again, this time seeking to withdraw her complaint, on the grounds that she now believed that her suspicions were misplaced. I agreed to discontinue the inquiry and advised the Director-General accordingly.
77. Notwithstanding the above, ASIO officers planned to visit the complainant in order to offer her further reassurance and to check on her general welfare in the period since the passing of their former colleague. This seemed an entirely appropriate response to the situation.
Did ASIO make adverse comment about an individual that resulted in that person being denied an overseas posting?
78. A former member of the Australian Defence Force wrote in November 1998, stating that he had been selected for an overseas posting some time in the mid-1970s but the posting did not proceed.
79. The complainant alleged that he was subsequently told by his then commanding officer that he had been denied this opportunity because ASIO had made an adverse security assessment of him.
80. As the complaint related to events which occurred before the creation of the office of Inspector-General I could not investigate the complaint, but having regard to the age of the complainant and the distress which he had long felt, asked the Director-General of Security whether he could look into the matter.
81. The Director-General agreed to do so and conducted a check of ASIO records from that period, which did not disclose any material adverse to the complainant. Although it is not the usual practice of ASIO to confirm or deny the existence of records except to people who have a demonstrable need to know based on national security grounds, the Director-General agreed that I might convey his findings to the complainant, given the unusual circumstances of the case.
82. The Director-General's exercise of discretion in this instance was a sensitive and appropriate response to the complainant's concerns.
Security assessments of applicants for protection visas two complaints
83. I received a letter in January 1999, written on behalf of a foreign national who had sought asylum in Australia on the grounds that he has a reasonable fear of persecution if he were to return to his country of origin.
84. This person lodged an application for a protection visa which, if granted, would afford him permanent resident status. As a part of the approval process ASIO was required to make a security assessment of the applicant. ASIO ultimately provided an adverse assessment.
85. The complaint made to me on behalf of the applicant was that ASIO's assessment was based on a number of false premises, stale information, circumstantial evidence, and without regard to the assistance provided by the applicant to Australian government authorities. At the time of the complaint the applicant had been in detention for approximately two years and had been found by the appropriate authorities in Australia to have a well-founded fear of persecution if returned to his country of origin.
86. Following receipt of this complaint, I took legal advice on the extent of my jurisdiction. This advice confirmed that I could investigate the legality and propriety of the security assessment process.
87. Taking this legal opinion into account and several further submissions made on behalf of the applicant, I decided to conduct a formal inquiry.
88. In June 1999, I reported to the Attorney-General, the Director-General of Security and the complainant, that I was satisfied that the security assessment in this case had been conducted in a proper and legal manner.
89. Although satisfied as to process, however, I did not consider that I could or should express a view on the merits of the ASIO assessment. That is a role which would be undertaken in normal circumstances by a determinative tribunal such as the Administrative Appeals Tribunal (AAT). In the applicant's case, however, there was no right to seek such review, since AAT review of adverse security assessments is not available to people who are not Australian citizens.
90. The unsatisfactory result in this case, therefore, and potentially in any other such case, was that there was an outstanding dispute about the merits of the security assessment even though ASIO did not make any process errors in conducting it. This is likely to make for difficulty and delay in decision-making in future such cases, with consequent extra expense for the Commonwealth. I therefore recommended to the Attorney-General that the government introduce legislation to provide a determinative review process for refugee applicants where appropriate Australian authorities find that the applicants have a well-founded fear of persecution if returned to their country of origin. If implemented this would apply to no more than a handful of cases in any one year.
91. The Attorney-General has undertaken to consider this recommendation in a review of the Administrative Appeals Tribunal.
92. In this instance the legal representatives of an applicant for a protection visa claimed that ASIO's adverse security assessment of their client was predicated on a number of false premises and relied largely on information provided by authorities whom the applicant regarded as his persecutors.
93. Shortly after receipt of the complaint I learnt that ASIO had reassessed the applicant and had withdrawn its earlier assessment. The Department of Immigration and Multicultural Affairs granted the applicant a protection visa.
94. Notwithstanding this positive outcome, the applicant's legal representatives reiterated their request that I should investigate the initial security assessment process.
95. In view of this, and the fact that the applicant had spent some 24 months in detention before receiving the visa, I instituted a formal inquiry into this matter. This inquiry was ongoing at the end of this reporting period.
Did ASIO management act in a discriminatory, unreasonable and oppressive manner against an employee?
96. In January 1999, an ASIO officer complained to my office about a series of matters relating to his employment.
97. On the basis of the complainant's submission and information from ASIO, I formed the view that the complaint fell outside the jurisdiction of the Inspector-General, because there is a satisfactory alternative review body for ASIO staff grievances, which the complainant could approach. In such circumstances the IGIS Act requires that the Inspector-General not inquire into the complaint.
98. I therefore informed the complainant that if he wished to pursue his complaint, he should lodge a submission with the Director-General of Security, asking that his grievances be reviewed by a grievance review committee, to be chaired by a person who has not been an officer, employee or agent of the Organization.
Did ASIO conduct covert surveillance on the widow of a political activist?
99. In January 1999, I received a letter from a woman who reported that she was the widow of a foreign national who had been politically active in the country of his birth, a fact which, she claimed, was known to the Australian government.
100. The complainant related how she had been approached in her current employment by a person who had asked her for confidential information about her clients. The complainant asked me to investigate whether this person was employed by ASIO, and whether she had been subjected to covert surveillance.
101. Following a preliminary inquiry into this matter, the complainant was advised that there was no evidence of any illegality or impropriety on the part of ASIO.
Did ASIO fail to meet certain undertakings allegedly made to a former agent/ human source?
102. A person purporting to be a former ASIO human source wrote to me in February 1999, alleging that ASIO had failed to honour an undertaking to publicly acknowledge that he was a paid human source, in a court hearing into a social security fraud with which he had been charged.
103. The complainant also alleged that ASIO had sought to avoid its taxation obligations with regards to the payment of human sources.
104. Following a preliminary inquiry I concluded that there was no evidence to suggest that ASIO had acted with anything other than proper regard for its legal obligations.
Did ASIO monitor the activities of a lobby group? If so, did ASIO pass information about this group to a foreign intelligence service?
105. Earlier this year a newspaper article appeared which suggested that ASIO had collaborated with a foreign intelligence service, to monitor the activities of a single issue lobby group.
106. In May 1999, the national co-ordinator of this group asked me to check the veracity of the claim made in the newspaper article, and to ascertain whether ASIO had acted illegally in any way.
107. A preliminary inquiry into this matter was ongoing at the end of the reporting period.